Philippine National Bank v. Barreto

VILLAMOR, J.:

The defendant Gabino Barreto executed a mortgage on a property situated in the city of Manila in favor of the plaintiff in order to secure any sum which he or the partnership Gabino Barreto & Co., Ltd., might owe the plaintiff (Exhibit B). The debt of the partnership Gabino Barreto & Co., Ltd., and of defendants Gabino Barreto Po E. Jap, and Po E. Soon not having been paid in due time, said plaintiff-appellee filed a complaint with the Court of First Instance of Manila for the foreclosure of the mortgage. The Court of First Instance of Manila ordered the defendants to pay the plaintiff jointly and severally the sum of P273,924.13, with 12 per cent interest thereon from October 1, 1923, until fully paid.

Upon failure to pay that sum or any part thereof within ninety days from the date of the judgment, the trial court ordered that the property mortgaged to plaintiff be sold at public auction to satisfy said obligation, subject to the first mortgage upon said property in favor of the Postal Bank and the remaider would be applied to the payment of this judgment. And should the proceeds of the sale not be sufficient to pay the whole amount of this judgment, it was ordered that execution be levied on any property of the defendants not exempt from execution. The defendants were further ordered to pay the costs and attorney's fees in sum equal to 12 per cent of the debt.

As this judgment was not appealed from if became final and subject to execution. The objects of the instant action is to collect the amount of P319,813.05, which is the balance of the judgment rendered jointly and severally against the defendant Gabino Barreto and his solidary codefendants in civil case No. 25280 of the Court of First Instance of Manila, out of the realty situated in Tacloban, Leyte mortgaged by the defendant Gabino Barreto Po E. Jap to the National Bank, according to Exhibit A. In the present action Po Tecsi M. H. Limjengco were included as defendants: Po Tecsi, because the mortgaged property which is the subject matter of this foreclosure proceedings was sold to him during the trial by the mortgagor Gabino Barreto, with the consent of the plaintiff bank; and Limjengco because of being the holder of a second mortgage upon the same property to the value of P140,000. It is alleged in the complaint that Gabino Barreto Po E. Jap, together with his solidarity codefendants in civil case No. 25280 of the cOurt of First Instance of Manila, owed the following amounts to the plaintiff National Bank on April 3, 1925 by reason of said judgment Exhibit B: Amount expressly mentioned in judgment .

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. P273,294.13 Twelve per cent interest on said amount from Oct. 1 to April 3, 1925 .

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. . 49,417.56 Attorney's fees equal to twelve per cent of P273,294.13.

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. . 32,795.28 Court costs .

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. 135.72