ROMMIL P.

NUNEZ

CRISTINA MARCELO VDA. DE BAUTISTA,

vs.
BRIGIDA MARCOS, ET AL.
G.R. No. L-17072
October 31, 1961

Facts:
Brigida Marcos (Mortgagor) obtained a loan in the amount of P2,000 from plaintiff Cristina Marcel Vda. de
Bautista (Mortgagee) . The deed of mortgage provided that it was to last for three years, that possession of the
land mortgaged was to be turned over to the mortgagee by way of usufruct, but with no obligation on her part
to apply the harvests to the principal obligation; that said mortgage would be released only upon payment of
the principal loan of P2,000 without any interest; and that the mortgagor promised to defend and warrant the
mortgagee's rights over the land mortgaged.

Mortgage a two (2)-hectare portion of an unregistered parcel of land situated in Sta. Ignacia, Tarlac. Mortgagor
Marcos filed an application for the issuance of a free patent, As a result, Free Patent No. V-64358 was issued on
January 25, 1957, and on February 22, 1957, it was registered in their names under Original Certificate of Title
No. P-888 of the office of Register of Deeds for the province of Tarlac.

The debt remained unpaid, Vda. De Bautista filed an action to foreclose mortgage. Marcos argued that the land
was covered by a free patent, thus cannot be taken. Court denied Marcos’ motion to dismiss on the ground
that mortgage was executed before the issuance of such patent.

Issue:
Whether the mortgage is valid.

Held:
No, the mortgage is not valid. Evidence show that the land mortgaged was still part of public domain when the
deed of mortgage was executed. It is an essential requisite under Art. 2085 of the Civil Code that the mortgagor
be the absolute owner of the thing mortgaged.
In this case the mortgage in question is void and ineffective because at the time it was constituted, the
mortgagor was not yet the owner of the land mortgaged and could not, for that reason, encumber the same to
the plaintiff-appellee. Nor could the subsequent acquisition by the mortgagor of title over said land through
the issuance of a free patent validate and legalize the deed of mortgage under the doctrine of estoppel.
Since upon the issuance of said patent, the land in question was thereby brought under the operation of the
Public Land Law that prohibits the taking of said land for the satisfaction of debts contracted prior to the
expiration of five years from the date of the issuance of the patent.
This prohibition should include not only debts contracted during the five-year period immediately preceding
the issuance of the patent but also those contracted before such issuance, if the purpose and policy of the law,
which is "to preserve and keep in the family of the homesteader that portion of public land which the State has
gratuitously given to him.
Therefor the judgment appealed from is reversed insofar as it orders the foreclosure of the mortgage in
question, but affirmed in all other respects. Costs again defendants-appellants.