RAOUL S.V. BONNEVIE and HONESTO V. BONNEVIE vs.

THE HONORABLE COURT OF APPEALS and THE PHILIPPINE BANK OF COMMERCE

G.R. NO. L-49101. OCTOBER 24, 1983
GUERRERO, J:

SYLLABUS:

A CONTRACT OF LOAN IS A CONSENSUAL CONTRACT: a contract of loan is perfected at

the same time a contract of mortgage is executed. A promissory note is merely an evidence
of indebtedness and does not indicate lack of consideration of the mortgage at the time of
its execution.

FACTS:

The Lozanos were the owners of the property which they mortgaged to secure the payment
of the loan in the amount of P 75,000 they were about to obtain from the defendant bank.
Two days later, before receiving the P 75,000.000 from the bank, the Lozanos executed in
favor of herein plaintiff a deed of sale with mortgage for a consideration of P 100,000. The
P 75,000 was received 6 days after the execution of the deed of mortgage when the Lozanos
and the co-maker signed the promissory note.

Upon failure to secure the payment, tdefendant bank applied for foreclosure of the
mortgage and an auction was conducted and offers from plaintiff to repurchase the
property failed. Now, plaintiff contends that since the P 75,000 was not received by the
Lozanos at the time the mortgage was executed makes the deed of mortgage invalid
because of its lack of consideration. Plaintiff further alleged that in the absence of a
principal obligation, there is want of consideration in the accessory contract, which
consequently impairs its validity and fatally affects its very existence.

ISSUE:

Whether the real estate mortgage executed by the spouses Lozano was valid

HELD:

Yes. The fact that the Lozanos did not collect from the bank the consideration of the
mortgage on the date it was executed is immaterial. A contract of loan, being a consensual
contract, was perfected at the same time the contract of mortgage was executed. Further, it
was stipulated in the contract of mortgage that should the mortgaged property is sold, the
vendee shall assume the mortgage in the terms and conditions under which it is
constituted. It can also be said that petitioners voluntarily assumed the mortgage when
they entered into the deed of sale with mortgage. They are now estopped from impugning
its validity.