BONNEVIE v CA

Facts:
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Spouses Lozano execute a mortgage contract in favor of Philippine Bank of

Commerce for an amount of 75,000.
Dec, 8 they executed a deed of sale with assumption f mortgage in favor of
Honesto Bonnevie in the amount of 100,000. 25K payable upon execution of
document. 75,000 payable to defendant-appellee (bank)
Although the mortgage was executed in Dec. 6, 1966, the amount of the loan
was only received on Dec. 12.
April 28, 1967 July 12, 1968 Bonnevie made several payments to the
mortgage
May 4, 1968 Honesto assigned all his rights to his brother Raoul Bonnevie.
June 1968 bank sought to foreclose the property extra judicially
Bank was able to purchase the property through the public auction in the
amount of 84,387.00
Petitioners sought to redeem the property but failed.
Petitioners caused an adverse claim to be annotated on the title of the
property.
Petitioners contend that the mortgage is invalid for lack of cause or
consideration. A mortgage being an accessory contract should have
a valid principal contract.

Issue:
1. Whether or not the real estate mortgage executed by the spouses Lozano in
favor of respondent bank was validly and legally executed.
Held:
Yes. The mortgage executed is perfectly valid. From the recitals of the mortgage
deed itself, it is clearly seen that the mortgage deed was executed for and on
condition of the loan granted to the Lozano spouses. The fact that the
latter did not collect from the respondent Bank the consideration of the
mortgage on the date it was executed is immaterial. A contract of loan
being a consensual contract, the herein contract of loan was perfected at
the same time the contract of mortgage was executed. The promissory
note executed on December 12, 1966 is only an evidence of indebtedness
and does not indicate lack of consideration of the mortgage at the time of
its execution.
Regarding the argument that the subsequent renewal were void because the
property were already sold to Bonnevie, the Supreme Court held that This argument
failed to consider the provision 2 of the contract of mortgage which prohibits the
sale, disposition of, mortgage and encumbrance of the mortgaged properties,
without the written consent of the mortgagee, as well as the additional proviso that

if in spite of said stipulation, the mortgaged property is sold, the vendee shall
assume the mortgage in the terms and conditions under which it is constituted.
These provisions are expressly made part and parcel of the Deed of Sale with
Assumption of Mortgage.
Petitioners admit that they did not secure the consent of the bank coupled with the
fact that the sale/assignment was not registered so that the title remained in the
name of the Lozano spouses, insofar as respondent Bank was concerned, the
Lozano spouses could rightfully and validly mortgage the property. Also it can be
said that petitioners voluntarily assumed the mortgage when they entered into the
Deed of Sale with Assumption of Mortgage. They are, therefore, estopped from
impugning its validity whether on the original loan or renewals thereof.
Collateral issues:
Publication : It was met and the newspaper was proven to be of general
circulation in the locality of Rizal
As to personal notice: Bank was not a party to the deed of sale hence it did not
know of the transfer. Hence the bank had an excuse for not notifying them
personally.
As to right to redeem: No right to redeem because they were not substituted as
debtors because they did not secure the consent of the bank. Their rights were
never recorded and hence, respondent Bank is charged with the obligation to
recognize the right of redemption only of the Lozano spouses. Even assuming they
had the right to redeem, the one year period had already lapsed.