BACHRACH MOTOR COMPANY, INC. vs.

RICARDO SUMMERS

FACTS:

 Elias Aboitiz executed a chattel mortgage upon a Nash automobile in favor of the
Bachrach Motor Company, Inc., to secure a debt for P3,675, payable in twelve
installments.
 The mortgagor defaulted in the payment of the installment and as a
consequence the Motor Company determined to have the car sold for the
purpose of foreclosing the mortgage.
 It accordingly requested Ricardo Summers, as sheriff of the city of Manila, to
take the car from the debtor and to expose it to public sale but the mortgagor
refused to surrender possession.
 Motor Company instituted an action of replevin to recover the car. However,
Aboitiz gave bond for the retention of the automobile pendente lite.
 The Motor Company thereupon filed the present petition in this court for the writ
of mandamus to compel the sheriff to seize the car from the mortgagor and sell it.
The sheriff demurred to this petition.

ISSUE:

Whether or not, after default by the mortgagor in the performance of the

conditions of a chattel mortgage, the sheriff is unconditionally bound to seize the
mortgaged property, at the instance of the creditor, and sell it to satisfy the debt.

RULING:

NO.

Upon default by the mortgagor in the performance of the conditions mentioned in the
contract of mortgage, the mortgagee is entitled to possession, because possession is
necessary in order to enable him to have the property publicly sold, as provided in
section 14 of the Chattel Mortgage Law.

If, however, the mortgagor refuses to surrender possession, the creditor must institute
an action either to effect a judicial foreclosure directly or to secure possession as a
preliminary to the sale contemplated in the section cited. He cannot lawfully take the
property by force against the will of the mortgagor.

Nor can the sheriff, acting at the instance of the mortgagee, do that which the latter
could not do himself. In such case the sheriff is the mere agent of the mortgagee, and
the statute imposes no specific duty upon him to seize the mortgaged property over the
opposition of the mortgagor.
The conclusion is clear that for the recovery of possession, where the right is disputed,
the creditor must proceed along the usual channels by action in court.