Documente Academic
Documente Profesional
Documente Cultură
Art. 2313
Segundo Fernando executed a deed of mortgage in favor of Cecilio Diego over 2
parcels of land to secure a loan of 2000 without interest, payable within 4 years
payment, remained unheeded, Diego filed this action for foreclosure of mortgage.
FERNANDO: the transaction was a antichrises and not a mortgage, that as plaintiff
already receive a total of 120 cavans of palay from the properties given as a security,
which total 5,200 thus his debt had already been paid, owing him 2,720 as refund.
Fernandos contention: while the contract shows a deed of mortgage, but the loan was
without interest, coupled with the transfer of possession of the poroperties to the
mortgagee, thus it is a contract of antichresis.
The main issue raised is whether the contract between the parties is one of mortgage or of
antichresis
RULING: that there was nothing in the deed of mortgage Exhibit "A" to show that it was not
a true contract of mortgage, and that the fact that possession of the mortgaged properties
were turned over to the mortgagee did not alter the transaction; that the parties must have
intended that the mortgagee would collect the fruits of the mortgaged properties as interest
on his loan
RULING:
he true position of appellee herein under his contract with appellant is a "mortgage in
possession" as that term is understood in American equity jurisprudence; that is "one who
has lawfully acquired actual or constructive possession of the premises mortgaged to him,
standing upon his rights as mortgagee and not claiming under another title, for the purpose
of enforcing his security upon such property or making its income help to pay his debt"
In the present case, the parties having agreed that the loan was to be without interest, and
the appellant not having expressly waived his right to the fruits of the properties mortgaged
during the time they were in appellee's possession, the latter, like an antichretic creditor,
must account for the value of the fruits received by him, and deduct it from the loan obtained
by appellant.
Antichresis vs Mortgage
LICERIO LEGASPI AND JULIAN SALCEDO VS. DAMASO
CELESTIAL
Subject matter of this case are 65 salt beds in Cavite
Plaintiffs brought an action against Celestial, ordering
him to pay the sum of P556 plus legal interest
defendant Damaso Calestial, as debtor, agrees to turn over to the plaintiffs, as creditors, the
possession of the salt beds so that the latter, after paying the expenses for the production,
administration and harvest of the salt with one-half of the produce, may keep the other half of
the use, benefit and enjoyment. It is not stipulated that the net produce of the salt beds shall
first be applied to the payment of the interest, if any, and afterwards to that of the principal of
their credit. Both contracts merely provide that the creditors shall keep one-half of the
products. Therefore, they are not contracts of antichresis, as defined by article 1881 of the
Civil Code.
n a contract of mortgage, the mortgagor, as a general rule, retains the possession of the
property mortgaged as security for the payment of the sum of money borrowed from the
mortgagee, and pays the latter a certain per cent thereof as interest on his principal by way
of compensation for his sacrifice in depriving himself of the use of said money and the
enjoyment of its fruits, in order to give them to the mortgagor. Inasmuch as it is not an
essential requisite of the contract of mortgage that the property mortgaged remain in the
possession of the mortgagor (article 1857 of the Civil Code), the latter may deliver said
property to the mortgagee, without thereby altering the nature of the contract.
hen a contracts of loan with security does not stipulate the payment of interest but provides
for the delivery to the creditor by the debtor of the real property constituted as security for the
payment thereof, in order that the creditor may administer the same and avail himself of its
fruits, without stating that said fruits are to be applied to the payment of interest, if any, and
afterwards to that of the principal of the credit, the contract shall be considered to be one of
mortgage and not of antichresis.
From the terms of the contract it is clearly a sale with the right
to repurchase. It speaks in unequivocal terms of a sale and the
conveyance of land with the right to repurchase, and the
character of the contract is that of a sale with the right to
repurchase. The contract is very defective in its wording,
especially so where it refers to the period within which to
excercise the right to repurchase.
But examining it as a whole, it clearly appears that it was the
parties' intention that the vendor could repurchase the land
without delay when he had the means to pay the purchase
price. What characterizes a contract or antichresis is that the
creditor acquires the right to receive the fruits of the property
of his debtor with the obligation to apply them to the payment
of interests, if any is due, and then to the principal of his
credit. Nowhere in the contract in question does this character
of a contract of antichresis appear. The only substantial thing
agreed upon between the parties was that Juana Mabaquiao
could repurchase the land when she had the means.
Innominate Contract
Dizon vs Gaborro
(Guerrero, 1978)
FACTS: Petitioner Jose P. Dizon was the owner of the three (3) parcels of land. He constituted a
first mortgage lien in favor of the Develop. ment Bank of the Philippines in order to secure a loan
in the sum of P38,000.00 trial a second mortgage lien in favor of the Philippine National Bank to
cure his indebtedness to said bank in the amount of P93,831.91
.Petitioner Dizon having defaulted in the payment of his debt, the Development Bank of the
Philippines foreclosed the mortgage extrajudicially.
Sometime prior to October 6, 1959 Alfredo G. Gaborro and Jose P. Dizon met. Gaborro became
interested in the lands of Dizon. Dizon originally intended to lease to Gaborro the property which
had been lying idle for some time. But as the mortgage was already foreclosed by the DPB trial
the bank in fact purchased the lands at the foreclosure sale on May 26, 1959, they abandoned the
projected lease.
Dizon and Alfredo Gaborro. on the same day, October 6, 1959, constitute in truth and in fact an
absolute sale of the three parcels of land therein described or merely an equitable mortgage or
conveyance thereof by way of security for reimbursement or repayment by petitioner Jose P.
Dizon of any and all sums which may have been paid to the Development Bank of the Philippines
and the Philippine National Bank by Alfredo G. Gaborro
Said documents were executed by the parties and the payments were made by Gaborro for the
debt of Dizon to said banks after the Development Bank of the Philippines had foreclosed the
mortgage executed by Dizon and during the period of redemption after the foreclosure sale of the
mortgaged property to said creditor bank.
Gaborros contention; Deed of Sale with Assumption of Mortgage trial Option to Purchase Real
Estate
Dizons contention: merely an equitable mortgage or conveyance thereof by way of security for
reimbursement, refund or repayment by petitioner Jose P. Dizon
ISSUE: WoN the deed was of a Deed of Sale with Assumption of Mortgage', trial Option to
Purchase Real Estate or merely an equitable mortgage or conveyance thereof by way of security
for reimbursement, refund or repayment by petitioner Jose P. Dizon?
HELD: In the light of the foreclosure proceedings and sale of the properties, a legal point of
primary importance here, as well as other relevant facts and circumstances, We agree with the
findings of the trial and appellate courts that the
true intention of the parties is that respondent Gaborro would assume and pay the indebtedness
of petitioner Dizon to DBP and PNB, and in consideration therefor, respondent Gaborro was
given the possession, the enjoyment and use of the lands until petitioner can reimburse fully the
respondent the amounts paid by the latter to DBP and PNB, to accomplish the following ends: (a)
payment of the bank obligations; (b) make the lands productive for the benefit of the possessor,
respondent Gaborro, (c) assure the return of the land to the original owner, petitioner Dizon, thus
rendering equity and fairness to all parties concerned.
In view of all these considerations, the law and Jurisprudence, and the facts established. We find
that the agreement between petitioner Dizon and respondent Gaborro is one of those inanimate
contracts under Art. 1307 of the New Civil Code whereby petitioner and respondent agreed "to
give and to do" certain rights and obligations respecting the lands and the mortgage debts of
petitioner which would be acceptable to the bank. but partaking of the nature of the antichresis
insofar as the principal parties, petitioner Dizon and respondent Gaborro, are concerned.
RULING:
Yes. In a contract of antichresis the creditor is obliged to pay the taxes on the property, unless the contract
says otherwise (Art. 1882 Civil Code). The contract between Congzon and Tan Sun said nothing about
taxes. Hence it was the obligation of the creditor or creditors to pay the taxes on the property at issue herein.
Bearing in mind that the credit was only P26,000 it is plain to see that Congzon et al affirmed in effect that
they had already discharged their debt (by advancing the taxes which the creditor should have paid) and are
entitled to the return of their property free from all encumbrance.