Professional Documents
Culture Documents
determine her ten percent (10%) share in the net profits. She
further prayed that she be paid the five percent (5%)
overriding commission on the remaining 150 West Bend
cookware sets before her dismissal.
Ratio:
To be considered a juridical personality, a partnership must
fulfill these requisites: (1) two or more persons bind
themselves to contribute money, property or industry to a
common fund; and (2) intention on the part of the partners to
divide the profits among themselves. It may be constituted in
any form; a public instrument is necessary only where
immovable property or real rights are contributed thereto. This
implies that since a contract of partnership is consensual, an
oral contract of partnership is as good as a written one.
Private respondent Anay contributed her expertise in the
business of distributorship of cookware to the partnership and
hence, under the law, she was the industrial or managing
partner.
Petitioner Belo had an proprietary interest. He presided over
meetings regarding matters affecting the operation of the
business. Moreover, his having authorized in writing giving
Anay 37% of the proceeds of her personal sales, could not be
interpreted otherwise than that he had a proprietary interest in
the business. This is inconsistent with his claim that he merely
acted as a guarantor. If indeed he was, he should have
presented documentary evidence. Also, Art. 2055 requires that
a guaranty must be express and the Statute of Frauds requires
that it must be in writing. Petitioner Tocao was also a
capitalist in the partnership. She claimed that she herself
financed the business.
The business venture operated under Geminesse Enterprise did
not result in an employer-employee relationship between
petitioners and private respondent. First, Anay had a voice in
the management of the affairs of the cookware distributorship
and second, Tocao admitted that Anay, like her, received only
commissions and transportation and representation allowances
and not a fixed salary. If Anay was an employee, it is difficult
to believe that they recieve the same income.
Also, the fact that they operated under the name of Geminesse
1
Facts:
Facts:
This is an action to recover possession of registered land
situated in Barrio Tatalon, Quezon City. The complaint of
plaintiff JM Tuason & Co Inc was amended 3 times with
respect to the extent and description of the land sough to be
recovered. Originally, the land sought to be recovered was
said to be more or less 13 hectares, but it was later amended to
6 hectares, after the defendant had indicated the plaintiff's
surveyors the portion of land claimed and occupied by him.
The second amendment is that the portion of the said land was
covered in another TCT and the 3rd amendment was made
after the defendant' surveyor and a witness, Quirino Feria
testified that the land occupied by the defendant was about 13
hectares.
Defendant raised the defense of prescription and title thru
"open, continuous, exclusive and public and notorious
possession of land in dispute. He also alleged that the
registration of the land was obtained by plaintiff's predecessor
through fraud or error.
BUSORG CASE DIGESTS
Atty. Charlie Mendoza
Facts:
On 2 March 1973, Jose Obillos, Sr. completed payment to
Ortigas & Co Ltd. on two lots located at Greenhills, San Juan,
Rizal. The next day, he transferred his rights to his four
BUSORG CASE DIGESTS
Atty. Charlie Mendoza
Also, petitioners argument that their being mere coowners did not create a separate legal entity was rejected
because, according to the Court, the tax in question is one
imposed upon "corporations", which, strictly speaking, are
distinct and different from "partnerships". When the NIRC
includes "partnerships" among the entities subject to the tax on
"corporations", said Code must allude, therefore, to
organizations which are not necessarily "partnerships", in the
technical sense of the term. The qualifying expression found
in Section 24 and 84(b) clearly indicates that a joint venture
need not be undertaken in any of the standard forms, or in
conformity with the usual requirements of the law on
partnerships, in order that one could be deemed constituted for
purposes of the tax on corporations. Accordingly, the
lawmaker could not have regarded that personality as a
condition essential to the existence of the partnerships therein
referred to. For purposes of the tax on corporations, NIRC
includes these partnerships - with the exception only of duly
registered general co partnerships - within the purview of the
term "corporation." It is, therefore, clear that petitioners herein
constitute a partnership, insofar as said Code is concerned and
are subject to the income tax for corporations.
As regards the residence of tax for corporations
(Section 2 of CA No. 465), it is analogous to that of section 24
and 84 (b) of the NIRC. It is apparent that the terms
"corporation" and "partnership" are used in both statutes with
substantially the same meaning. Consequently, petitioners are
subject, also, to the residence tax for corporations.
Finally, on the issues of being liable for real estate dealers
tax, they are also liable for the same because the records show
that they have habitually engaged in leasing said properties
whose yearly gross rentals exceeds P3,000.00 a year.
AFISCO v. COURT OF APPEALS 302 SCRA 1 (1999)
Facts:
The petitioners are 41 non-life insurance corporations,
organized and existing under the laws of the Philippines,
entered into a Quota Share Reinsurance Treaty and a Surplus
Reinsurance Treaty with the Munchener Ruckversi-cherungsGesselschaft (hereafter called Munich), a non-resident foreign
insurance corporation. The reinsurance treaties required
petitioners to form a [p]ool. Accordingly, a pool composed of
the petitioners was formed on the same day.
The pool of machinery insurers submitted a financial
statement and filed an Information Return of Organization
Exempt from Income Tax for the year ending in 1975, on the
basis of which it was assessed by the Commissioner of
Internal Revenue deficiency corporate taxes in the amount of
P1,843,273.60, and withholding taxes in the amount of
P1,768,799.39 and P89,438.68 on dividends paid to Munich
and to the petitioners, respectively. These assessments were
protested by the petitioners.
On January 27, 1986, the Commissioner of Internal Revenue
denied the protest and ordered the petitioners, assessed as
Pool of Machinery Insurers, to pay deficiency income tax,
7
Ratio:
Based on the copy of the public instrument attached in the
complaint, the partnership was established to operate a
fishpond", and not to "engage in a fishpond business. Thus,
Mabatos contention that it is really inconceivable how a
partnership engaged in the fishpond business could exist
without said fishpond property (being) contributed to the
partnership is without merit. Their contributions were limited
to P1000 each and neither a fishpond nor a real right thereto
was contributed to the partnership. Therefore, Article 1773 of
the Civil Code finds no application in the case at bar. Case
remanded to the lower court for further proceedings.
Legal bases:
A r t . 1 8 2 8 . T h e d i s s o l u t i o n o f a
p a r t n e r s h i p
i s
t h e
c h a n g e
i n
t h e r e l a t i o n o f t h e
partners
caused
by
any
partner
ceasing
to
be
associated
in
the
c a r r y i n g o n a s distinguished from the winding up of
the business.
Art. 1830. Dissolution is caused:
(1) without violation of the agreement between the partners;
(b) by the express will of any partner, who must act in good
faith, when no definite term
or particular undertaking is specified;
(2) in contravention of the agreement between the partners,
where the circumstances do
not permit a dissolution under any other provision of this
article, by the express will of any partner at any time;
No winding up of affairs in this case as
contemplated in Art 1829: on dissolution
t h e partnership is not terminated, but continues until the
winding up of partnership affairs is completed t h e n e w
partnership
simply
took
over
the
business enterprise owned by the
o l d partnership, and continued using the
old name of Jade Mountain Products
Company
Limited, without winding up the business affairs of the old
partnership, paying off its debts, liquidating and distributing
its net assets, and then re-assembling the said assets or most of
them and opening a new business enterprise
2. Yes. the new partnership is liable for the debts of the old
partnership
Legal basis: Art. 1840 (see codal)
ROJAS V. MAGLANA
December 10, 1990
Paras, C.J.
Raeses, Roberto Miguel
SUMMARY: Maglana and Rojas executed their articles of
co-partnership called EDE. It had an indefinite term, was
registered with the SEC, and had a Timer License. Later,
Agustin Pahamitang became an industrial partner and
another articles of co-partnership was executed. The term of
the second co-partnership was fixed to 30 years. After some
time, the three executed a conditional sale of interest in the
partnership where Magalana and Rojas shall purchase the
interest, share, and participation of Pahamotang. It was
agreed that, after payment of such including the loan secured
by Pahamotang, the two shall become owners of all
equipment contributed by Pahamotang. The two continued
the partnership without any written agreement or
reconstitution of the articles of partnership. Subsequently,
Rojas entered into a contarct with CMS Estate. Maglana
reminded him of his contribution to the capital investments
and his duties to the partnership. Rojas said he would not be
able to comply. Maglana told Rojas that the latter is only
BUSORG CASE DIGESTS
Atty. Charlie Mendoza
FACTS:
12
Ratio:
Bastida vs Menzi
13
They carried out their threat and dismissed him from work,
effective June 30, 1994. He ended up sick, jobless and
penniless.
On September 13, 1994, Sahot filed with the NLRC
NCR Arbitration Branch, a complaint for illegal dismissal,
docketed as NLRC NCR Case No. 00-09-06717-94. He
prayed for the recovery of separation pay and attorneys fees
against Vicente Sy and Trinidad Paulino-Sy, Belen Paulino,
Vicente Sy Trucking, T. Paulino Trucking Service, 6Bs
Trucking and SBT Trucking, herein petitioners.
For their part, petitioners admitted they had a trucking
business in the 1950s but denied employing helpers and
drivers. They contend that private respondent was not
illegally dismissed as a driver because he was in fact
petitioners industrial partner. They add that it was not until
the year 1994, when SBT Trucking Corporation was
established, and only then did respondent Sahot become an
employee of the company, with a monthly salary that reached
P4,160.00 at the time of his separation.
Petitioners further claimed that sometime prior to June
1, 1994, Sahot went on leave and was not able to report for
work for almost seven days. On June 1, 1994, Sahot asked
permission to extend his leave of absence until June 30,
1994. It appeared that from the expiration of his leave, private
respondent never reported back to work nor did he file an
extension of his leave. Instead, he filed the complaint for
illegal dismissal against the trucking company and its owners.
Petitioners add that due to Sahots refusal to work after
the expiration of his authorized leave of absence, he should be
deemed to have voluntarily resigned from his work. They
contended that Sahot had all the time to extend his leave or at
least inform petitioners of his health condition. Lastly, they
cited NLRC Case No. RE-4997-76, entitled Manuelito
Jimenez et al. vs. T. Paulino Trucking Service, as a defense in
view of the alleged similarity in the factual milieu and issues
of said case to that of Sahots, hence they are in pari material
and Sahots complaint ought also to be dismissed.
The NLRC NCR Arbitration Branch, through Labor
Arbiter Ariel Cadiente Santos, ruled that there was no illegal
dismissal in Sahots case. Private respondent had failed to
report to work. Moreover, said the Labor Arbiter, petitioners
and private respondent were industrial partners before January
1994. The Labor Arbiter concluded by ordering petitioners to
pay financial assistance of P15,000 to Sahot for having
served the company as a regular employee since January 1994
only.
On appeal, the National Labor Relations Commission
modified the judgment of the Labor Arbiter. It declared that
private respondent was an employee, not an industrial partner,
since the start. Private respondent Sahot did not abandon his
job but his employment was terminated on account of his
illness, pursuant to Article 284[9] of the Labor Code.
Accordingly, the NLRC ordered petitioners to pay private
respondent separation pay in the amount of P60,320.00, at the
rate of P2,080.00 per year for 29 years of service.
BUSORG CASE DIGESTS
Atty. Charlie Mendoza
Time and again this Court has said that if doubt exists
between the evidence presented by the employer and the
employee, the scales of justice must be tilted in favor of the
latter.[25] Here, we entertain no doubt. Private respondent
since the beginning was an employee of, not an industrial
partner in, the trucking business.
Coming now to the second issue, was private
respondent validly dismissed by petitioners?
Petitioners contend that it was private respondent who
refused to go back to work. The decision of the Labor Arbiter
pointed out that during the conciliation proceedings,
petitioners requested respondent Sahot to report back for
work. However, in the same proceedings, Sahot stated that he
was no longer fit to continue working, and instead he
demanded separation pay. Petitioners then retorted that if
Sahot did not like to work as a driver anymore, then he could
be given a job that was less strenuous, such as working as a
checker. However, Sahot declined that suggestion. Based on
the foregoing recitals, petitioners assert that it is clear that
Sahot was not dismissed but it was of his own volition that he
did not report for work anymore.
In his decision, the Labor Arbiter concluded that:
While it may be true that respondents insisted that
complainant continue working with respondents despite his
alleged illness, there is no direct evidence that will prove that
complainants illness prevents or incapacitates him from
performing the function of a driver. The fact remains that
complainant suddenly stopped working due to boredom or
otherwise when he refused to work as a checker which
certainly is a much less strenuous job than a driver.[26]
But dealing the Labor Arbiter a reversal on this score
the NLRC, concurred in by the Court of Appeals, held that:
While it was very obvious that complainant did not have any
intention to report back to work due to his illness which
incapacitated him to perform his job, such intention cannot be
construed to be an abandonment. Instead, the same should
have been considered as one of those falling under the just
16
of the province.
ISSUE:
WHETHER OR NOT A CHARITABLE INSTITUTION IS A
NECESSARY PARTY IN THIS CASE.
RULING:
NO, no charitable institution is a necessary party in the present
case of determination of the rights of the parties. The action
which may arise from said article, in the case of unlawful
partnership, is that for the recovery of the amounts paid by the
member from those in charge of the administration of said
partnership, and it is not necessary for the said parties to base
their action to the existence of the partnership, but on the fact
that of having contributed some money to the partnership
capital. Hence, the charitable institution of the domicile of the
partnership, and in the default thereof, those of the province
are not necessary parties in this case.
In so ruling, the court had the occasion of explaining the scope
and spirit of the provision of Article 1666 of the Civil Code
(now Article 1770 of the New Civil Code).
With regard to Contributions of an Illegal Partnership: the
court holds that (1) The partner who limits himself to
demanding only the amount contributed by him need not
resort to the partnership contract on which to base his action
since said contract does not exist in the eyes of the law, the
purpose from which the contribution was made has not come
into existence, and the administrator of the partnership holding
said contribution retains what belongs to others, without any
consideration; for which reason he is not bound to return it
and he who has paid in his share is entitled to recover it.
(2) Our Code does not state whether, upon the dissolution of
the unlawful partnership, the amounts contributed are to be
returned by the partners, because it only deals with the
disposition of the profits; but the fact that said contributions
are not included in the disposal prescribed profits, shows that
in consequences of said exclusion, the general law must be
followed, and hence the partners should reimburse the amount
of their respective contributions.
(3) Any other solution is immoral, and the law will not
consent to the latter remaining in the possession of the
manager or administrator who has refused to return them, by
denying to the partners the action to demand them.
With regard to Profits of an Illegal Partnership: the court
holds that (1) The article cited above permits no action for
the purpose of obtaining the earnings made by the unlawful
partnership, during its existence as result of the business in
which it was engaged, because for the purpose, the partner
will have to base his action upon the partnership contract,
which is to annul and without legal existence by reason of its
unlawful object; and it is self evident that what does not exist
cannot be a cause of action. (2) Profits earned in the course of
the partnership, because they do not constitute or represent the
BUSORG CASE DIGESTS
Atty. Charlie Mendoza
partnership
BATCH 2
DAN FUE LEUNG vs HON. INTERMEDIATE
APPELLATE COURT and LEUNG YIU
G.R. No. 70926, January 31, 1989
GUTIERREZ, JR., J.
FACTS:
This case originated from a complaint filed by
respondent Leung Yiu with the then Court of First Instance of
Manila, Branch II to recover the sum equivalent to (22%) of
the annual profits derived from the operation of Sun Wah
Panciteria since October, 1955 from petitioner Dan Fue
Leung. The Sun Wah Panciteria, a restaurant, located at
Florentino Torres Street, Sta. Cruz, Manila, was established
sometime in October, 1955. It was registered as a single
proprietorship and its licenses and permits were issued to and
in favor of petitioner Dan Fue Leung as the sole proprietor.
Respondent Leung Yiu adduced evidence during the trial of
the case to show that Sun Wah Panciteria was actually a
partnership and that he was one of the partners having
contributed P4,000.00 to its initial establishment.
The private respondents evidence is summarized as follows:
About the time the Sun Wah Panciteria started to
become operational, the private respondent gave P4,000.00 as
his contribution to the partnership. This is evidenced by a
receipt wherein the petitioner acknowledged his acceptance of
the P4,000.00 by affixing his signature thereto. The receipt
was written in Chinese characters. Witnesses So Sia and
Antonio Ah Heng corroborated the private respondents
testimony to the effect that they were both present when the
receipt was signed by the petitioner. So Sia further testified
that he himself received from the petitioner a similar receipt
evidencing delivery of his own investment in another amount
of P4,000.00 An examination was conducted by the PC Crime
Laboratory. The signatures in Exhibits "A" and 'D' when
compared to the signature of the petitioner appearing in the
pay envelopes of employees of the restaurant, namely Ah
Heng and Maria Wong showed that the signatures in the two
receipts were indeed the signatures of the petitioner.
Furthermore, the private respondent received from the
petitioner the amount of P12,000.00 covered by the latter's
Equitable Banking Corporation Check No. 13389470-B from
the profits of the operation of the restaurant for the year 1974.
The petitioner denied having received from the private
respondent the amount of P4,000.00. He contested and
impugned the genuineness of the receipt. His evidence is
summarized as follows:
The petitioner did not receive any contribution at the
time he started the Sun Wah Panciteria. He used his savings
from his salaries as an employee at Camp Stotsenberg in Clark
Field and later as waiter at the Toho Restaurant amounting to a
little more than P2,000.00 as capital in establishing Sun Wah
Panciteria. To bolster his contention that he was the sole
owner of the restaurant, the petitioner presented various
government licenses and permits showing the Sun Wah
Panciteria was and still is a single proprietorship solely owned
and operated by himself alone. Fue Leung also flatly denied
having issued to the private respondent the receipt and the
BUSORG CASE DIGESTS
Atty. Charlie Mendoza
That the herein plaintiff Tan Put and her late husband Po
Chuan married at the Philippine Independent Church of Cebu
City on December, 20, 1949; that Po Chuan died on March 11,
1966; that the plaintiff and the late Po Chuan were childless
but the former has a foster son Antonio Nuez whom she has
reared since his birth with whom she lives up to the present;
that prior to the marriage of the plaintiff to Po Chuan the latter
was already managing the partnership Glory Commercial Co.
then engaged in a little business in hardware at Manalili St.,
Cebu City; that prior to and just after the marriage of the
plaintiff to Po Chuan she was engaged in the drugstore
business; that not long after her marriage, upon the suggestion
of Po Chuan the plaintiff sold her drugstore for P125,000.00
which amount she gave to her husband in the presence of
defendant Lim Tanhu and was invested in the partnership
Glory Commercial Co. sometime in 1950; that after the
investment of the above stated amount in the partnership its
business flourished and it embarked in the import business and
also engaged in the wholesale and retail trade of cement and
GI sheets and under huge profits;
That the late Po Chuan was the one who actively managed the
business of the partnership Glory Commercial Co. he was the
one who made the final decisions and approved the
appointments of new personnel who were taken in by the
partnership; that the late Po Chuan and defendants Lim Tanhu
and Ng Sua are brothers, the latter two (2) being the elder
brothers of the former; that defendants Lim Tanhu and Ng Sua
are both naturalized Filipino citizens whereas the late Po
Chuan until the time of his death was a Chinese citizen; that
the three (3) brothers were partners in the Glory Commercial
Co. but Po Chuan was practically the owner of the partnership
having the controlling interest; that defendants Lim Tanhu and
Ng Sua were partners in name but they were mere employees
of Po Chuan.
ISSUES:
1) Whether or not the trial court erred in its ruling.
2) Whether or not the claim of respondent Tan Put
for an accounting and money claim against the
partnership is valid.
HELD:
The trial courts conclusion of the supposed
marriage of Tan Put to deceased Tee Hoon Lim Po Chuan is
contrary to the weight of the evidence brought before it during
the trial and the pre-trial.
TAN PUT is not a widow of deceased Tee Hoon Lim Po
Chuan.
Under Article 55 of the Civil Code, the declaration of the
contracting parties that they take each other as husband and
wife "shall be set forth in an instrument" signed by the parties
as well as by their witnesses and the person solemnizing the
marriage. Accordingly, the primary evidence of a marriage
must be an authentic copy of the marriage contract. While a
marriage may also be proved by other competent evidence, the
23
Default
If Orient Air Services shall at any time default in
observing or performing any of the provisions of
this Agreement or shall become bankrupt or make
any assignment for the benefit of or enter into any
agreement or promise with its creditors or go into
liquidation, or suffer any of its goods to be taken in
execution, or if it ceases to be in business, this
Agreement may, at the option of American, be
terminated forthwith and American may, without
prejudice to any of its rights under this Agreement,
take possession of any ticket forms, exchange
orders, traffic material or other property or funds
take possession of any ticket forms, exchange
orders, traffic material or other property or funds
belonging to American.
Remittances
Orient Air Services shall remit in United States
dollars to American the ticket stock or exchange
orders, less commissions to which Orient Air
Services is entitled hereunder, not less frequently
than semi-monthly, on the 15th and last days of
each month for sales made during the preceding
half month.
Commissions
Termination
American will pay Orient Air Services
commission on transportation sold hereunder by
Orient Air Services or its sub-agents as follows:
2.
American
Air's
termination
of
the
DAMAGES:
-
SC AFFIRMS CA
vs.
THE HONORABLE COURT OF APPEALS, DAVAO
MERCHANDISING CORPORATION, FIELDMEN'S
INSURANCE COMPANY INC., CESAR B. CEBALLOS,
JESUS C. MARQUEZ and BARTOLOME
CABANGBANG,respondents.
FACTS: The National Rice and Corn Corporation (Naric)
had on stock 8000 metric tons of corn which it could not
dispose of due to its poor quality. Naric called for bids for the
purchase of the corn and rice. But precisely because of the
poor quality of the corn, a direct purchase of said corn even
with the privilege of importing commodities did not attract
good offers. Davao Merchandising Corporation (Damerco)
came in with its offer to act as agent in the exportation of the
corn, with the agent answering for the price thereof and
shouldering all expenses incidental thereto, provided it can
import commodities, paying the NARIC therefor from the
price it offered for the corn. Damerco was to open a domestic
letter of credit, which shall be available to the NARIC drawing
therefrom through sight draft without recourse. The
availability of said letter or letters of credit to the NARIC was
dependent upon the issuance of the export permit. The
payment therefor depended on the importation of the collateral
goods, which is after its arrival.
The first half of the collateral goods was successfully
imported. Due to the inferior quality of the corn, it had to be
replaced with more acceptable stock. This caused such delay
that the letters of credit expired without the NARIC being able
to draw the full amount therefrom. Checks and PN were issued
by DAMERCO for the purpose of securing the unpaid part of
the price of the corn and as guaranty that DAMERCO will
purchase the corresponding collateral goods.
But because of the change of administration in the
government, barter transactions were suspended. Hence,
DAMERCO was not able to import the remaining collateral
goods.
NARIC instituted in the CFI of Manila against
DAMERCO and Fieldmens Insurance Co. Inc. an action for
recovery of a sum of money representing the balance of the
value of corn and rice exported by DAMERCO.
DAMERCO alleged that its juridical relationship
with the NARIC is governed by a contract, wherein it was
agreed that DAMERCO would "act as agent" of NARIC "in
exporting the quantity and kind of corn and rice", "as well as
in importing the collateral goods that will be imported thru
barter on a back to back letter of credit or no-dollar remittance
basis"; that DAMERCO had agreed "to buy the
aforementioned collateral goods", not the corn grains that
were exported; that, therefore, it had no obligation to NARIC
until after such collateral goods had been imported. It also
alleged that it should not be made to pay NARIC, since the
collateral goods worth more than US$480,000.00 had not been
imported as a consequence of the suspension of barter
transactions and non-renewal of barter permits by the new
29
a.
b.
HELD:
1. The letter of authority is valid and enforceable against
the Bank
2. The respondents are the procuring cause of the sale;
hence they should be rewarded their commission
pursuant to the letter of authority
Procuring cause: a cause originating a series of events
which, without break in their continuity, result in
accomplishment of prime objective of the employment of
the broker- producing a purchaser ready, willing and able
to buy real estate on the owners terms
Rationale:
1. The letter of authority serves as a contract
between the parties.
o As such, Medrano cannot renege on the
promise to pay the commission because he
is not the registered owner of the property
31
sell, it was error for the lower Court not to have declared the
foreclosure proceedings and auction sale held in 1978 null and
void because the Special Power of Attorney given by Juan de
Jesus to Jose de Jesus was merely to mortgage his property,
and not to extrajudicially foreclose the mortgage and sell the
mortgaged property in the said extrajudicial foreclosure.
ISSUE: Whether the agent-son exceeded the scope of his
authority in agreeing to a stipulation in the mortgage deed that
petitioner bank could extrajudicially foreclose the mortgaged
property
HELD: No. Art, 1879 is inapplicable. The sale proscribed by
a special power to mortgage under Article 1879 is a voluntary
and independent contract, and not an auction sale resulting
from extrajudicial foreclosure, which is precipitated by the
default of a mortgagor. Absent that default, no foreclosure
results. The stipulation granting an authority to extrajudicially
foreclose a mortgage is an ancillary stipulation supported by
the same cause or consideration for the mortgage and forms an
essential or inseparable part of that bilateral agreement.
The power to foreclose is not an ordinary agency that
contemplates exclusively the representation of the principal by
the agent but is primarily an authority conferred upon the
mortgagee for the latter's own protection. In fact, the right of
the mortgagee bank to extrajudicially foreclose the mortgage
after the death of the mortgagor Juan de Jesus, acting through
his attorney-in-fact, Jose de Jesus, did not depend on the
authorization in the deed of mortgage executed by the latter.
That right existed independently of said stipulation and is
clearly recognized in Section 7, Rule 86 of the Rules of Court,
which grants to a mortgagee three remedies that can be
alternatively pursued in case the mortgagor dies, to wit: (1) to
waive the mortgage and claim the entire debt from the estate
of the mortgagor as an ordinary claim; (2) to foreclose the
mortgage judicially and prove any deficiency as an ordinary
claim; and (3) to rely on the mortgage exclusively, foreclosing
the same at any time before it is barred by prescription,
without right to file a claim for any deficiency.
Petitioner bank, therefore, in effecting the extrajudicial
foreclosure of the mortgaged property, merely availed of a
right conferred by law. The auction sale that followed in the
wake of that foreclosure was but a consequence thereof.
34