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FIDELITY
AND
SURETY
COMPANY OF THE PHILIPPINES,
G. R. No. L-1508 February 16, 1950 -versus-THE COURT OF APPEALS AND SIXTO A. CARLOS, Respondents. PARAS, J :
In a foreclosure proceeding
instituted before the war by the Monte de Piedad y Caja de Ahorros vs.
Angela Aguilar de Guzman and Fortunato A. Guzman, Case No. 57776 of the
Court of First Instance of Manila, the herein respondent Sixto A.
Carlos
was the purchaser at public auction of the mortgaged property. The sale
was confirmed by the Court of First Instance of Manila on December 4,
1941,
subject only to the right of redemption of the herein petitioner,
Fidelity
and Surety Company of the Philippines, as holder of a second mortgage
on
said property. This reservation was made because the petitioner, as
second
mortgagee, had not been included in the foreclosure proceeding filed by
the Monte de Piedad y Caja de Ahorros, as first mortgagee. The herein
petitioner
instituted a separate foreclosure proceeding against the Guzman spouses
[Civil Case No. 59593 of the Court of First Instance of Manila], in
which
judgment of foreclosure was rendered on August 18, 1941. This judgment
was appealed by the Guzman spouses to the Court of Appeals wherein the
case was pending until August 1943, when the Guzman spouses paid their
obligation to the petitioner in Japanese military notes and the parties
moved for the dismissal of the appeal in view of an amicable
settlement.
On August 11, 1945, the herein respondent filed a petition in the Court
of First Instance of Manila in G. L. R. O. cadastral record No. 392,
praying
that the Register of Deeds of Manila be ordered to cancel in the
certificate
of title the annotation covering the right of redemption in favor of
petitioner.
After hearing, the Court of First Instance of Manila issued an order
granting
the petition. Upon appeal by the petitioner, the Court of Appeals
affirmed
the order of the Court of First Instance of Manila. The petitioner has
come to Us by way of certiorari, seeking the reversal of the Decision
of
the Court of Appeals.
PADILLA, J., Concurring: I concur in the result.
There seems to be no need of invoking the rule laid down in the case of
"La Orden de Padres Benedictinos de Filipinas vs. The Philippine Trust
Co.[3],
G. R. No. L-2020, 29 December 1949, because, according to the majority
opinion, the debtors paid to the petitioner the debt the payment of
which
was secured by a second mortgage on the property "and the parties moved
for the dismissal of the appeal [then pending in the Court of Appeals]
in view of an amicable settlement, " and because the right of
redemption
had already expired, as found by the trial Court. But if the ground for
affirming the order of cancelation of the right redemption in favor of
the petitioner appealed from is the rule laid down in the case referred
to, then I dissent from such ground for the same reasons stated in my
opinion
in said case.
TUASON, J.: I join in this opinion. _______________________________ Endnotes:[1] 85 Phil., 217. [2] 78 Phil., 809. [3] 85 Phil., 217. |
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