The main issue raised is whether the contract between the parties is

one of mortgage or of antichresis. Appellant, while admitting that the

contract Exhibit "A" shows a deed of mortgage, contends that the
admitted fact that the loan was without interest, coupled with the
transfer of the possession of the properties mortgaged to the
mortgagee, reveals that the true transaction between him and appellee
was one of antichresis. As correctly pointed out by appellee and the
lower court, however, it is not an essential requisite of a mortgage that
possession of the mortgaged premises be retained by the mortgagor
(Legaspi and Salcedo vs. Celestial, 66 Phil., 372). To be antichresis, it
must be expressly agreed between creditor and debtor that the
former, having been given possession of the properties given as
security, is to apply their fruits to the payment of the interest, if owing,
and thereafter to the principal of his credit (Art. 2132, Civil Code,
Barretto vs. Barretto, 37 Phil., 234; Diaz vs. De Mendezona, 48 Phil.,
666); so that if a contract of loan with security does not stipulate the
payment of interest but provides for the delivery to the creditor by the
debtor of the property given as security, in order that the latter may
gather its fruits, without stating that said fruits are to be applied to the
payment of interest, if any, and afterwards that of the principal, the
contract is a mortgage and not antichresis (Legaspi vs. Celestial, supra).
The court below, therefore, did not err in holding that the contract
Exhibit "A" is a true mortgage and not an antichresis. (Diego v.
|||

Fernando, G.R. No. L-15128, [August 25, 1960], 109 PHIL 143-148)

A real estate mortgage is but an accessory contract to secure the loan

in the promissory note. Its cancellation does not automatically result in
the extinguishment of the loan. Being the principal contract, the loan is
unaffected by the release or cancellation of the mortgage. Certainly, a
debt may subsist even without a mortgage. Thus, in the case at bench,
ADMIRAL can still run after Co for the payment of the loan under the
promissory note, even after the release of the mortgage on the
properties, especially because there was no showing that the mortgage
was constituted as a security for the loan covered by the promissory
note. (Co v. Admiral Savings Bank, G.R. No. 154740, [April 16, 2008], 574
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PHIL 609-619)
A real estate mortgage, on the other hand, according to the same
Code, is a contract embodied in a public instrument recorded in the
Registry of Property, by which the owner of an immovable (or an
alienable real right imposed upon immovables) directly and
immediately subjects it, whoever the possessor may be, to the
fulfillment of the obligation for whose security it was
constituted. (Destileria Limtuaco & Co., Inc. v. Intermediate Appellate
|||

Court, G.R. No. 74369, [January 29, 1988], 241 PHIL 753-765)

On the other hand, a "lien" is a charge on property usually for

the payment of some debt or obligation. 15 A "lien" is a qualified
right or a proprietary interest, which may be exercised over the
property of another. It is a right which the law gives to have a debt
satisfied out of a particular thing. 16 It signifies a legal claim or
charge on property, either real or personal, as a collateral or
security for the payment of some debt or obligation.
Similarly, an "encumbrance is a burden upon land,
depreciative of its value, such as a lien, easement, or servitude,
which, though adverse to (the) interest of (the) landowner, does not
conflict with his conveyance of (the) land in fee." 17
The following are considered encumbrances: A claim, lien,
charge, or liability attached to and binding real property; e.g., a
mortgage, judgment lien, lease, security interest, easement or right
of way, accrued and unpaid taxes. 18 A lien is already an existing
burden or charge on the property while a notice of lis pendens, as the
very term connotes, is only a notice or warning that a claim or possible
charge on the property is pending determination by the court.
(People v. Regional Trial Court of Manila, G.R. No. 81541, [October 4,
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1989], 258-A PHIL 68-78)