1. OBLIGATIONS; ALTERNATE OBLIGATIONS. — In alternative obligations, there is no right to choose undertaking that are impossible or illegal (Civ. Code, art. 1132, par. 2 and art. 1170). An alternative obligation to pay in English currency, which fell due in 1943, became impossible of performance, and therefore the right of election ceased to exist in 1943. In other words, the debtor’s obligation has since then ceased to be alternative.

2. ID.; TENDER OF PAYMENT AND CONSIGNATION. — Office of payment or consignation, to be effective, must comply with some legal requirements (Civ. Code, articles 1157, 1166, and 1170). Tender of payment made by the plaintiffs in Japanese military notes was a valid tender because it was the only currency permissible at the time, and the same was made in accordance with the agreement because payment in Japanese military notes during the occupation is tantamount to payment in Philippine currency. But the consignation of the sum of P75,920.83 in Japanese currency made by the plaintiffs with the clerk of court does not have any legal effect because it was made in certified check, and a check "does not meet the requirements of a legal tender."

This is an appeal from a judgment of the Court of First Instance of Manila rendered on August 5, 1949, dismissing the complaint and ordering plaintiff Clara Tambunting de Legarda to pay to the defendant the sum of P70,000, with interest thereon at the rate of 3 1/2 per cent per annum, from January 1, 1942, up to the date of full payment thereof, plus the sum of P2,500 as costs of suit and attorney’s fees, within 120 days from the date of notice, and ordering the sale of the property mortgaged in accordance with law in the event of failure of said plaintiff to pay the amount of the judgment within the period above mentioned.

The background of this case, which originated during the Japanese occupation, is correctly stated in the judgment of the lower court, as follows:jgc:chanrobles.com.ph

"On June 3, 1944, plaintiffs filed a complaint against the original defendant William J. B. Burke, alleging defendant’s unjustified refusal to accept payment in discharge of a mortgage indebtedness in his favor, and praying that the latter be ordered (1) to receive the sum of P75,920.83 deposited by plaintiff Clara Tambunting de Legarda, the mortgagor, on the same date with the clerk of this court in payment of the mortgage indebtedness of said plaintiff to defendant herein, (2) to execute the corresponding deed of release of mortgage, and (3) to pay damages in the sum of P1,000.

"The gist of defendant’s answer dated the 19th of July, 1944, is that plaintiffs have no cause of action for the reason that at the instance of plaintiff Clara Tambunting de Legarda an agreement was had on May 26, 1944, whereunder defendant condoned the interests due and to become due on the mortgage indebtedness till the termination of the war, in consideration of the undertaking of said plaintiff (with the consent of her husband Vicente L. Legarda, the other plaintiff) to pay her obligation to defendant upon such termination of the war; and that the war then had not yet terminated.

"Upon the issues raised, after due hearing, decision was rendered by this Court through the then Judge, Honorable Jose Gutierrez David (now Appellate Court Justice), ordering defendant to accept the sum of P75,920.83 deposited by plaintiff Clara Tambunting de Legarda in the office of the clerk of court; to execute forthwith a deed of release of mortgage covering the property in question; to pay plaintiff the sum of P120.40 representing the cost of the certification of the check deposited in the court and consignation, together with the clerk’s commission for the deposit of the money in court and the costs of the suit.

"Defendant, on or about January 14, 1945, presented a motion to set aside the foregoing decision and for a new trial. Before this Court could act on this motion, liberation came.

"On October 10, 1945, petition was filed on behalf of plaintiffs for the reconstitution of the record of this case.

"On October 23, 1945, defendant filed a supplemental answer alleging that the payment (by way of consignation in Japanese military notes made by plaintiff Clara Tambunting de Legarda in satisfaction of the mortgage obligation in question, which was originally contracted on the 17th of February, 1926, was null and void, and did not discharge the said obligation; and that, as plaintiffs well knew, defendant did not plead the foregoing facts in his original answer because had he done so "he and his attorneys would have been taken by the Japanese military police to Fort Santiago where they would have been tortured and most probably killed. The supplemental answer contains a counter-claim whereunder defendant sought the foreclosure of the real estate mortgage on the property in question. Basis of the counter-claim are the averments that the original mortgage executed by plaintiff Clara Tambunting de Legarda with the consent of her husband, plaintiff Vicente L. Legarda, was for the sum of P75,000; that said mortgage was renewed from time to time until on March 16, 1940, at plaintiff Clara Tambunting de Legarda’s request, defendant entered into another agreement with whereunder the latter granted said plaintiff a fourth extension of three years for the payment of the remaining balance of P70,000, and further reduced the interest rate from 9 per cent to 7 per cent per annum; that in the said agreement of March 16, 1940, defendant was granted an option to demand the payment of the principal and interests either in Philippine currency or in English currency at the rate of two @shillings (