SAAVEDRA v.

PRICE
G.R. No. 46702 | October 6, 1939

Petitioners: Aleida Saavedra

Respondents: W.S. Price, Fortunato Borromeo, Judge of CFI Leyte, Anastacio Anover, Provincial Sheriff of Leyte
Intervenor: Rafael Martinez

Ponente: Imperial, J.

DOCTRINE: Excussion must be raised at the earliest possible time. While it is true that Saavedra was a surety to
Martinez & as such surety she is entitled to resort to the actions & remedies against Martinez which the law affords
her, it is important to note that Saavedra was not sued as a surety but as a mortgage debtor for being the owner of
the property. Moreover, this alleged defense should have been interposed before judgment was rendered in this case
and it is too late to raise it for the first time as a ground for opposing the motion to sell the real property in question.

FACTS:
This is a petition of certiorari filed by Aleida Saavedra, the wife of Ceferino Ibañez which sought to annul the May 8,
1939 order of the court which provide for the sale at public auction Saavedra’s real property, the proceeds thereof
applied to the payment of the credit of respondent W.S. Price, in the sum of P15,000.

SAAVEDRA ET AL. v. MARTINEZ ET AL. The deed of sale (Exhibit C) executed by Ceferino Ibañez in favor of
Rafael Martinez is declared RESCINDED & WITHOUT FORCE AND EFFECT, and the register of deeds of Leyte is
ORDERED to cancel TCT No. 294 issued in favor of Martinez & in liue thereof, to issue another TCT in favor of
Ibañez and his wife Aleida Saavedra without prejudice to any right of action Martinez may have against Ibañez. There
should be a notation of the following:
(1) The mortgage constituted in favor of W.S. Price for the payment of P15,000;
(2) The judgment rendered by this court in case G.R. No. 33795, Civil Case No. 7957 of the CFI of Cebu.

PRICE v. IBAÑEZ ET AL. Ordered Ibañez to pay Price within 90 days the sum of P15,000, with legal interest
thereon and in case of default, that the real property subject matter of the mortgage be sold at public auction so that
the proceeds thereof may be applied to the payment of the sum in question & the interest thereon.

ON APPEAL; PRICE v. IBAÑEZ ET AL. The Court modified the judgment ordering both Martinez and Ibañez to pay
the sum of P15,000 to Price within the 90-day period to be counted from the date this decision becomes final.

After the 90-day period had elapsed and Martinez & Ibañez failed to pay the sum in question with the interest
thereon, Price filed a motion praying that the real property mortgaged be sold at public auction for the payment of his
mortgage credit & interest.

The motion was set for hearing on April 22, 1939, but on Saavedra’s motion, the court postponed it definitely for May
6, 1939. On the 4th of said month, Saavedra’s attorneys sought again the postponement of the hearing by reason of
the bad weather then prevailing, but the court proceeded with the hearing of the motion on the date fixed. On May 8,
1939, it entered the order directing the sale of the mortgaged realty for the payment of the judgment obtained by
Price. Saavedra asked for reconsideration of the order, but the court denied the same.

ISSUES:
1. Whether or not respondent Judge Borromeo acted with grave abuse of discretion in not transferring the hearing
of the motion for the sale of the mortgaged realty? (NO)
2. Whether or not respondent Judge Borromeo exceed his jurisdiction in ordering the sale of the property since it
cannot be sold to pay the debt for the reason that petitioner Saavedra is a mere surety of Martinez and therefore
entitled to the benefit of exhaustion under the Civil Code? (NO)

HELD:
1. NO, respondent Judge Borromeo made good use of his discretion in denying the postponement.
(1) First, the hearing had already been postponed definitely to another date upon Saavedra’s petition
herself.
(2) Second, in a mere motion to sell the mortgaged realty, the court could hear it ex parte without
Saavedra’s petitioner because the judgment rendered & affirmed by the court had already been ordered
previously that should Martinez & Ibañez fail to pay the debt within 90 days, the mortgaged realty must
be sold in accordance to law.
2. NO, respondent Judge did not exceed his jurisdiction as Saavedra was sued not as a surety but as a mortgage
debtor for being the owner of the mortgaged property.

Saavedra’s contention is that she merely acted as a surety to Martinez, the principal debtor, and as such she is
entitled to the benefit of exhaustion of Martinez’s property in accordance with the Civil Code and therefore, the
court should not have ordered the sale of the real property in question. This contention is untenable because
(1) This alleged defense should have been interposed before judgment was rendered in this case and it is
too late to raise it for the first time as a ground for opposing the motion to sell the real property in
question.
(2) There is no support in law that just because Saavedra was a mere surety to Rafael Martinez, the
mortgaged real property belonging to her cannot be sold to pay the debt of the principal debtor.

The lien imposed upon the mortgaged property belonging to Saavedra was legal and valid in accordance with
Article 1857 par. 3 of the Civil Code, and in case of default, the said property is subject to sale in accordance
with Articles 1858 & 1876 of the same Code & Sections 256 & 257 of the Code of Civil Procedure.

While it is true that Saavedra was a surety to Martinez & as such surety she is entitled to resort to the actions &
remedies against Martinez which the law affords her, it is important to note that Saavedra was not sued as a
surety but as a mortgage debtor for being the owner of the property.

DISPOSITION:
The order of May 1939, appealed from, being in accordance with law, for the reason that it was rendered by the
respondent Judge in the exercise of his jurisdiction & discretion, the petition for certiorari is hereby DENIED, with
costs against Aleida Saavedra.

NOTES:
LERMA’S LECTURES. The application of the provision on mortgage was not used in this case because this was
ruled prior to the New Civil Code.

ARTICLE 1857 [NOW ARTICLE 2085(3)]. Third persons who are not parties to the principal obligation may secure
the latter by pledging or mortgaging their own property.

ARTICLE 1858 [NOW ARTICLE 2087]. It is also of the essence of [mortgage] contracts that when the principal
obligation becomes due, the things in which the pledge or mortgage consists may be alienated for the payment to the
creditor.

ARTICLE 1876 [NOW ARTICLE 2126]. The mortgage directly and immediately subjects the property upon which it is
imposed, whoever the possessor may be, to the fulfillment of the obligation for whose security it was constituted.