JOSE LEDESMA, plaintiff-appellee,

vs.
SALVADOR V. DEL ROSARIO ET AL., defendants.
B. JALANDONI and CESAR JALANDONI, appellants.

Alfredo B. Calcupitan for appellants in case No. 24589.

Lacson, & Lacson & Pamintuan for appellants in case No. 24671.
Angel A. Ansaldo for appellee in both cases.

STREET, J.:

This action was instituted by Jose Ledesma in the Court of First Instance of the City of Manila for the purpose of
foreclosing a mortgage executed by the defendants, Salvador V. del Rosario and Benita Quiogue de Del Rosario, on
certain property located in the City of Manila and covered by Torrens titles, as indicated in the complaint. The
property was originally mortgaged to Bernardino Jalandoni and Cesar Jalandoni for the purpose of securing a loan of
P130,000 which appears to have been advanced by them to Benita Quiogue de Del Rosario but the Jalandonis
transferred their credit and rights under the mortgage for a valuable consideration to Jose Ledesma, agreeing at the
same time that they would answer to Ledesma for any unpaid balance due upon the mortgage debt after the
foreclosure and failure of the mortgagors to pay said balance. Accordingly, in addition to the original mortgagors, the
Jalandonis were named as codefendants in the complaint, with whom also are joined two defendants, Froilan Lopez
and Chua Lua, had levied attachments upon the mortgaged property; but these later are nominal defendants and have
not figured in the litigation.

Upon hearing the cause the trial judge found that the principal of the mortgage debt, in the amount of P130,000, was
due and enforceable at the time of the institution of the action and that interest had accrued thereon at the rate of 12
per centum per annum from August, 1924, and would so continue to accrue until the indebtedness should be paid. He
also declared that under a special stipulation in the mortgage P12,000 was due to the plaintiff as attorney's fees and
costs; and he accordingly entered an order requiring the defendant Del Rosarios to pay all of said sums within ninety
days, upon default in the payment of which the property should be sold purposes of foreclosure according to the
provisions of the Mortgage Law. He further required the defendant Del Rosarios to pay jointly and severally any
balance of the indebtedness remaining unsatisfied from the foreclosure sale and adjudged that the two Jalandonis
jointly and severally, but subsidiarily, should pay any balance that might still remain unpaid after the proceeds of the
sale should have been applied and the Del Rosarios should have failed to satisfy said balance. From this judgment
both Del Rosarios and the Jalandonis appealed from the features of the decision severally unfavorable to them. The
two appeals have been brought to this court in separate records, somewhat to the confusion of the issues involved in
the respective contentions of the appellants; but the causes have been here heard together and will be disposed of a
single opinion.

The date fixed in the original contract of mortgage for the maturity of the mortgage debt was December 11, 1924, but
the contract contained a provision to the effect that the interest should be paid in monthly installments, as due for
each month, and that for failure on the part of the mortgagors, to comply with any of their obligations under the
contract of mortgage the creditors might treat the mortgage debt as due. It further appears that no interest was paid
after August, 1923, for which reason the plaintiff elected to treat the whole debt as due and instituted this foreclosure
proceeding on November 8, 1924, a few weeks before the stipulated date maturity. The only defense urged in behalf
of the principal debtors, going to the whole right of action, is planted upon the claim that Benita Quiogue de Del
Rosario had entered the monthly interest as and when due but that the creditor had refused to accept it save upon the
unreasonable condition that the debtors should pay the interest for an additional month, which was not then due. The
trial court found that this contention was without sufficient basis in fact, and we see no reason to question the
correctness of his finding. It results that there was no error on the part of the trial court in refusing to dismiss the case
as premature or for any other reason; and judgment of foreclosure was properly entered in favor of the plaintiff.

The original mortgage contained a provision for the payment of 10 per centum of the principal and occurred interest
cover attorney's fees and court costs in case of default on her part of the mortgagor. Under this clause the trial court
made an allowance of P12,000 and the mortgagors have assigned error on this point, claiming that the allowance is
excessive. This court is of the opinion that the assignment is well taken; and in accordance with the ideas in E. C.
McCullough & Co. vs. Veloso and Serna (46 Phil., 1), the amount must be reduced. In view off the simplicity of the
issues as well as other factors involved in the case, we are of the opinion that the sum of P6,500 will be adequate
compensation for attorney's fees and costs.

The appeal of the Jalandonis, in so far as it is planted upon the grounds relied upon by the mortgagors, is likewise
necessarily without merit; but the Jalandonis raise one point distinct from the defense interposed by the principal
debtors, and this defense has relation to the action of the trial court in giving judgment against them jointly and
severally, but subsidiarily, for any balance due after the application of the proceeds of the foreclosure sale and
exhaustion of remedies against the principal debtors. In this connection it is instead that the Jalandonis are mere
guarantors and were not usable jointly with the mortgage debtors. The clause of the contract (Exhibit A) by which
the Jalandonis created the liability here involved reads as follows:

That, in the remote event of the foreclosure of the mortgage for noncompliance on the part of the mortgage
debtors with any of the conditions stipulated in the mortgage, and in the event that the mortgaged property
shall have proven insufficient to cover the principal of one hundred and thirty thousand pesos (P130,000),
Philippine currency, with accrued interest, and to satisfy the penal provision for ten per centum as attorney's
fees, expenses and judicial costs, we bind ourselves jointly and severally, but subsidiarily, to answer to Sr.
Jose Ledesma, his heirs and successors in interest, for the unpaid balance of any of these amounts, to the
complete liquidation of the same.

We are of the opinion that this clause had the effect of impressing on the obligation of the Jalandonis every feature of
a joint and several obligation except that it should be subsidiary. In other words by this provision they claim the
benefit of the exhaustion of the property of the principal debtors. Under the judgment of the trial court this benefit
was secured to them, and we think that this is all to which they are fairly entitled. That the Jalandonis were proper
parties to this lawsuit is undeniable, and it is a well-known doctrine that courts of equity will not tolerate the bringing
of a suit to settle only part of a controversy. To hold that the personal liability of the Jalandonis cannot be enforced in
the same action in which the foreclosure is effected would make the ends of justice subordinate to a mere legal
technically, — something that should be avoided.

It results that the judgment appealed from will be modified by allowing P6,500 instead of P12,000 for attorney's fees
and costs, and as thus modified the judgment is in all respects affirmed, without special pronouncement as to the
costs.

Avanceña, C. J., Malcolm, Villamor, Ostrand, Johns and Villa-Real JJ., concur.

 
 
THE  GOVERNMENT  OF  THE  PHILIPPINE  ISLANDS,  applicant-­‐appellee,    
vs.  
HEIRS  OF  PAULINO  ABELLA,  ET  AL.,  opponents;    
BARTOLOME  SALAMANCA  and  BROTHERS,  ROSAURO  AGONOY,  CLEMENTE  LAZARO,  
and  EMILIO  ESERJOSE,  appellants.  

Francisco, Lualhati & Lopez and Esteban del Rosario for appellants.
Attorney-General Jaranilla for appellee.

STREET, J.:

In the cadastral expendiente No. 10, G. L. R. O. Record No. 270, of the Court of First Instance of Nueva Ecija,
Bartolome Salamanca claims lots Nos. 3001, 3002, 3003, 3009, 3017, 3056, 3057, 3058, 3086, 3089, 3090, 3092,
3093, 3094, 3095, 3097, 3102, 3108, 3110, 3112, and 3114, alleging that the inherited the same from his deceased
father Anastacio Salamanca. Clemente Lazaro and Rosauro Agonoy together claim the undivided ownership of lots
Nos. 1122, 3016, 3018, 3059, 3062, 3063, 3064, 3084, 3085, 3088, 3098, 3121, and 3009, the first alleging that he
acquired his interest by purchase from Restituto Romero in 1907 and the second that he had inherited his share from
his father Policarpo Agonoy, who in turn purchased from Restituto Romero in 1907. Emilio Eserjose claims lots
Nos. 2991, 2992, 2993, 2994, 2995, 3115, 3117, 3118, 3119, 3120, 3122, 3199, and 3456, asserting that he acquired
the same by purchase from Restituto Romero in the year 1907.

Upon hearing the cause on June 15, 1925, the trial court overruled the claims of the four individuals above-
mentioned and declared the parcels in controversy to the public land, i. e., lots Nos. 1122, 3016, 3018, 3059, 3062,
3063, 3064, 3084, 3085, 3088, 3098, 3121, 3001, 3002, 3003, 3008, 3009, 3017, 3056, 3057, 3058, 3086, 3089,
3090, 3092, 3093, 3094, 3095, 3097, 3102, 3110, 3108, 3112, 3114, 2989, 2990 to 2995, inclusive 3115, 3117, 3118,
3119, 3120, 3122, 3456, and 3463. From this judgment Bartolome Salamanca, Clemente Lazaro, Rosauro Agonoy,
and Emilio Eserjose have appealed.

Before entering into merits of the case it is necessary to dispose of a question relating to the competency of the trial
judge to hear and determine the cause in the court below. In this connection it appears that the judge who decided the
case, namely, Judge Conrado Carballo, is the same person who, as Acting Director of Lands, caused an
administrative investigation to be conducted in the year 1921 into the conflicting claims of Bartolome Salamanca and
numerous homesteaders who, with the approval of the Director of Lands, had previously occupied much or all of the
land now in question under the provisions of the Public Land Act. As a result of said investigation Judge Caraballo,
as Acting Director of Lands, dismissed the claim of Salamanca as founded and sustained the rights of the
homesteaders to the property as public land. It further appears that the present cadastral was instituted in April, 1921;
and the petition initiating the proceeding appears to be signed by the same Carballo, in the capacity of Acting
Director of Lands.

When the controversy over these lots arrived at the stage for the submission of proof and the hearing of the cause,
Judge Caraballo was then presiding in the Court of First Instance of Nueva Ecija; and as no objection whatever had
been raised by any of the appellants with respect to his competency, he proceeded to hear and determine the cause.
After a decision had been made, adverse to the appellants, their attorneys filed a motion on the cause, asking the
judge to inhibit himself as disqualified, on the ground that, prior to the initiation of the cadastral proceeding, he had
conducted an administrative investigation with respect to the controversy between Salamanca and the homesteaders.
At still later date another motion of inhibition was made, on the ground, alleged to have been the newly discovered,
that cadastral was initiated by the judge who had presided at the trial. These motions were overruled, and the court
having adhered to its decision, and having overruled the motion for reconsideration, the cause was brought to this
court, upon appeal, as previously stated.

We are of the opinion that the execution taken to the competency of Judge Carballo is not well founded. Even
supposing that the situation was one where the trial judge, upon having his attention called to the matter, might
properly inhibited himself acting in the matter, yet it is obvious that he had jurisdiction and power to act; and the
failure of the appellants to interpose objection prior to the decision, is a fatal obstacle to raising any objection on this
ground later. The attorneys for the appellants should have been familiar which the pleadings in the cause, as well as
other documents in the record. Reference to these would at once have revealed that fact that Judge Carballo had
participated administratively to the extent above stated. A litigant, having these facts before him, be permitted to
speculate upon the action of a court and raise an objection of this sort after decision has been rendered.

The grounds of disqualification specified in section 8 of the Code of Civil Procedure supply matter of preliminary
exception, and timely objection should be submitted in writing as is required in said section. The inadvertent failure
of the court to disqualify himself in the case there mentioned does not supply a ground for reversing the judgment;
but of course if this court were of the opinion that the litigant had not a fair trial, a new trial could be granted. In the
case before us Judge Carballo had no personal interest in the controversy, and it is obvious that substantial justice has
not suffered. In section 503 of the Code of Civil Procedure this court is prohibited from reversing any cause on
merely formal or technical grounds not prejudicial to the excepting party.
With respect to the merits of the contention over the title to the land, the following facts are pertinent: In the year
1894 one Restituto Romero instituted proceedings to obtain a possessory information covering a tract of about 100
hectares of land located in what is now the barrio of San Agustin, municipality of San Jose, Nueva Ecija, with the
Digdig River on the north, the Estero Tapirong on the east, the Estero Luyos on the west, ands the Estero Tagaytay
on the south. These proceedings terminated in the extension of the document, Exhibit B. In 1907 Romero executed
deeds conveying to various individuals several parcels of land purporting to be of those included in said possessory
information. One portion, of an area of 63 hectares, 91 ares, and 62 centares, was thus sold to Cornelio Ramos; and a
sketch of the piece parcel sold to Ramos is printed in our decision in Ramos vs. Director of Lands (39 Phil., 175).
Said parcel lies south of the land involved in these present dispute. Another parcel consisting of 81 hectares, 93 ares
and 75 centares was sold by Romero to one Crisanto Sanchez, This parcel lies still further south than that purchased
by Ramos; and both Ramos and Sanchez have in former proceedings procured the registration in their own names of
the lands claimed by them under said deeds. This makes a total of nearly 146 hectares already registered, of the land
covered by Romero's possessory information.

The land in question in the case before us has an area of more than 180 hectares and it is located to the north and east
of the tract acquired by Ramos. All of the appellants claim title directly or indirectly from Restituto Romero by
virtue of conveyances made to them or their predecessors in interest in the year 1907 (Exhibits A, F, and O). The
lands claimed by the different appellants together form a single mass as shown in the sketch plan of the Bureau of
Lands, Exhibit No. 6. all of it seems to be now occupied by some fifteen homesteaders who entered upon the parcels,
now severally occupied by them, in the year 1913.

The document relied upon by the appellants as their ultimate source of title is the Exhibit B, which, as already stated,
is a possessory information extended in favor of Restituto Romero upon proceedings instituted by him in the year
1894. This document is a possessory information only, as the proceedings necessary to the procurance of a royal
decree do not appear to have been taken. Besides, the recitals of the possessory information are not such as to show
that the conditions requisite to a royal decree were ever complied with. In Ramos vs. Director of Lands (39 Phil.,
175), we pronounced this same instrument to be a mere possessory information.

There are two circumstances which, taken singly or together, are serious obstacles to the conclusion that the lands
now claimed by the appellants are covered by the Exhibit B. The first consists in the fact that the possessory
information calls for an area of only 100 hectares, while the lands claimed by the appellants together comprise some
182 hectares. As we have already seen, some 146 hectares of land have already been registered in favor of other
claimants as comprised within limits of said possessory information. The other consideration is found in the fact that
the calls for boundaries in the possessory information have little relation to the natural limits of the land now claimed
by the appellants. For instance, the Estero Tapirong now divides the land claimed by the appellants from east to
west, instead of supplying the eastern boundary; while the Estero Luyos, called for as the western boundary in the
possessory information, appears to lie to the south, in proximity to the and registered by Crisanto Sanchez. Even
after making all due allowances for changes effected by natural agents in course of time in the beds of the streams, it
is difficult to believe that the lands now in controversy were, at the time the possessory information was extended,
within the boundaries therein expressed.

Apart from these considerations we are of the opinion that there is no satisfactory proof of continuous possession on
the part of the appellants and their predecessors in interest of the lands now claimed by them. It is certain that these
lands were unoccupied when the homesteaders made their advent in 1913, and they appear to have been vacant for
an indefinite period prior to that epoch. The appellants' claim of ownership therefore fails not only for lack of
certainty upon the point of the inclusion of the land in the description of Exhibit B, but for lack of continuity of
possession on the part of the appellants and their predecessors in interest.

Error in the conclusions of the trial court has therefore not been demonstrated, and the judgment appealed from must
be affirmed. It is so ordered, with costs against the appellants.

Avanceña, C. J., Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
Johnson, J., reserves his vote.