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L-40824

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Republic of the Philippines

SECOND DIVISION

G.R. No. L-40824 February 23, 1989

GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner,

The Government Corporate Counsel for petitioner.

Lorenzo A. Sales for private respondents.

REGALADO , J.:

Private respondents, Mr. and Mrs. Isabelo R. Racho, together with the spouses Mr. and Mrs Flaviano Lagasca,
executed a deed of mortgage, dated November 13, 1957, in favor of petitioner Government Service Insurance
System (hereinafter referred to as GSIS) and subsequently, another deed of mortgage, dated April 14, 1958, in
connection with two loans granted by the latter in the sums of P 11,500.00 and P 3,000.00, respectively. 1 A parcel
of land covered by Transfer Certificate of Title No. 38989 of the Register of Deed of Quezon City, co-owned by said
mortgagor spouses, was given as security under the aforesaid two deeds. 2 They also executed a 'promissory note"
which states in part:

... for value received, we the undersigned ... JOINTLY, SEVERALLY and SOLIDARILY, promise to pay
the GOVERNMENT SERVICE INSURANCE SYSTEM the sum of . . . (P 11,500.00) Philippine
Currency, with interest at the rate of six (6%) per centum compounded monthly payable in . . .
(120)equal monthly installments of . . . (P 127.65) each. 3

On July 11, 1961, the Lagasca spouses executed an instrument denominated "Assumption of Mortgage" under
which they obligated themselves to assume the aforesaid obligation to the GSIS and to secure the release of the
mortgage covering that portion of the land belonging to herein private respondents and which was mortgaged to the
GSIS. 4 This undertaking was not fulfilled. 5

Upon failure of the mortgagors to comply with the conditions of the mortgage, particularly the payment of the
amortizations due, GSIS extrajudicially foreclosed the mortgage and caused the mortgaged property to be sold at
public auction on December 3, 1962. 6

More than two years thereafter, or on August 23, 1965, herein private respondents filed a complaint against the
petitioner and the Lagasca spouses in the former Court of

First Instance of Quezon City, 7 praying that the extrajudicial foreclosure "made on, their property and all other
documents executed in relation thereto in favor of the Government Service Insurance System" be declared null and
void. It was further prayed that they be allowed to recover said property, and/or the GSIS be ordered to pay them the
value thereof, and/or they be allowed to repurchase the land. Additionally, they asked for actual and moral damages
and attorney's fees.

In their aforesaid complaint, private respondents alleged that they signed the mortgage contracts not as sureties or
guarantors for the Lagasca spouses but they merely gave their common property to the said co-owners who were
solely benefited by the loans from the GSIS.

The trial court rendered judgment on February 25, 1968 dismissing the complaint for failure to establish a cause of
action. 8

Said decision was reversed by the respondent Court of Appeals 9 which held that:

... although formally they are co-mortgagors, they are so only for accomodation (sic) in that the GSIS
required their consent to the mortgage of the entire parcel of land which was covered with only one
certificate of title, with full knowledge that the loans secured thereby were solely for the benefit of the
appellant (sic) spouses who alone applied for the loan.

xxxx

'It is, therefore, clear that as against the GSIS, appellants have a valid cause for having foreclosed the
mortgage without having given sufficient notice to them as required either as to their delinquency in the
payment of amortization or as to the subsequent foreclosure of the mortgage by reason of any default
in such payment. The notice published in the newspaper, 'Daily Record (Exh. 12) and posted pursuant
to Sec 3 of Act 3135 is not the notice to which the mortgagor is entitled upon the application being
made for an extrajudicial foreclosure. ... 10

On the foregoing findings, the respondent court consequently decreed that-

In view of all the foregoing, the judgment appealed from is hereby reversed, and another one entered
(1) declaring the foreclosure of the mortgage void insofar as it affects the share of the appellants; (2)

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directing the GSIS to reconvey to appellants their share of the mortgaged property, or the value thereof
if already sold to third party, in the sum of P 35,000.00, and (3) ordering the appellees Flaviano
Lagasca and Esther Lagasca to pay the appellants the sum of P 10,00.00 as moral damages, P
5,000.00 as attorney's fees, and costs. 11

The case is now before us in this petition for review.

In submitting their case to this Court, both parties relied on the provisions of Section 29 of Act No. 2031, otherwise
known as the Negotiable Instruments Law, which provide that an accommodation party is one who has signed an
instrument as maker, drawer, acceptor of indorser without receiving value therefor, but is held liable on the
instrument to a holder for value although the latter knew him to be only an accommodation party.

This approach of both parties appears to be misdirected and their reliance misplaced. The promissory note
hereinbefore quoted, as well as the mortgage deeds subject of this case, are clearly not negotiable instruments.
These documents do not comply with the fourth requisite to be considered as such under Section 1 of Act No. 2031
because they are neither payable to order nor to bearer. The note is payable to a specified party, the GSIS. Absent
the aforesaid requisite, the provisions of Act No. 2031 would not apply; governance shall be afforded, instead, by
the provisions of the Civil Code and special laws on mortgages.

As earlier indicated, the factual findings of respondent court are that private respondents signed the documents
"only to give their consent to the mortgage as required by GSIS", with the latter having full knowledge that the loans
secured thereby were solely for the benefit of the Lagasca spouses. 12 This appears to be duly supported by
sufficient evidence on record. Indeed, it would be unusual for the GSIS to arrange for and deduct the monthly
amortizations on the loans from the salary as an army officer of Flaviano Lagasca without likewise affecting
deductions from the salary of Isabelo Racho who was also an army sergeant. Then there is also the undisputed fact,
as already stated, that the Lagasca spouses executed a so-called "Assumption of Mortgage" promising to exclude
private respondents and their share of the mortgaged property from liability to the mortgagee. There is no intimation
that the former executed such instrument for a consideration, thus confirming that they did so pursuant to their
original agreement.

The parol evidence rule 13 cannot be used by petitioner as a shield in this case for it is clear that there was no
objection in the court below regarding the admissibility of the testimony and documents that were presented to prove
that the private respondents signed the mortgage papers just to accommodate their co-owners, the Lagasca
spouses. Besides, the introduction of such evidence falls under the exception to said rule, there being allegations in
the complaint of private respondents in the court below regarding the failure of the mortgage contracts to express
the true agreement of the parties. 14

However, contrary to the holding of the respondent court, it cannot be said that private respondents are without
liability under the aforesaid mortgage contracts. The factual context of this case is precisely what is contemplated in
the last paragraph of Article 2085 of the Civil Code to the effect that third persons who are not parties to the principal
obligation may secure the latter by pledging or mortgaging their own property

So long as valid consent was given, the fact that the loans were solely for the benefit of the Lagasca spouses would
not invalidate the mortgage with respect to private respondents' share in the property. In consenting thereto, even
assuming that private respondents may not be assuming personal liability for the debt, their share in the property
shall nevertheless secure and respond for the performance of the principal obligation. The parties to the mortgage
could not have intended that the same would apply only to the aliquot portion of the Lagasca spouses in the
property, otherwise the consent of the private respondents would not have been required.

The supposed requirement of prior demand on the private respondents would not be in point here since the
mortgage contracts created obligations with specific terms for the compliance thereof. The facts further show that
the private respondents expressly bound themselves as solidary debtors in the promissory note hereinbefore
quoted.

Coming now to the extrajudicial foreclosure effected by GSIS, We cannot agree with the ruling of respondent court
that lack of notice to the private respondents of the extrajudicial foreclosure sale impairs the validity thereof. In
Bonnevie, et al. vs. Court of appeals, et al., 15 the Court ruled that Act No. 3135, as amended, does not require
personal notice on the mortgagor, quoting the requirement on notice in such cases as follows:

Section 3. Notice shall be given by posting notices of sale for not less than twenty days in at least three
public places of the municipality where the property is situated, and if such property is worth more than
four hundred pesos, such notice shall also be published once a week for at least three consecutive
weeks in a newspaper of general circulation in the municipality or city.

There is no showing that the foregoing requirement on notice was not complied with in the foreclosure sale
complained of .

The respondent court, therefore, erred in annulling the mortgage insofar as it affected the share of private
respondents or in directing reconveyance of their property or the payment of the value thereof Indubitably, whether
or not private respondents herein benefited from the loan, the mortgage and the extrajudicial foreclosure
proceedings were valid.

WHEREFORE, judgment is hereby rendered REVERSING the decision of the respondent Court of Appeals and
REINSTATING the decision of the court a quo in Civil Case No. Q-9418 thereof.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.

Footnotes

1 Record on Appeal, 9, 22; Rollo, 54.

2 Rollo, 58.

3 Ibid., 26.
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4 Record on Appeal, 27-31; Rollo, 54.

5 Rollo, 59.

6 Ibid., Id.; Record on Appeal, 64.

7 Branch IV, Civil Case No. Q-9418; Record on Appeal, 1- 38; Rollo, 54.

8 Record on Appeal, 69-73; Ibid.

9 CA-G.R. No. 42193-R; Justice Pacifica P. de Castro, ponente, Justices Luis B. Reyes and Ramon G.
Gaviola, Jr., concurring.

10 Rollo, 61-63.

11 Ibid., 66.

12 Ibid., 61.

13 Sec. 7, Rule 130, Rules of Court.

14 Record on Appeal, 3-4; Rollo, 54.

15 125 SCRA 122 (1983).

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