[G.R. No. 38925. November 7, 1933. ]
YAP ANTON, Plaintiff-Appellee, v. ADELAIDA CABULONG, administratrix of the estate of the deceased Santiago Fian, Defendant-Appellant.
Teodoro A. Aviles, for Appellant.
Filemon Sotto, for Appellee.
1. APPEAL AND ERROR; EVIDENCE; EXCEPTIONS; CODE OF CIVIL PROCEDURE, SECTION 142, CONSTRUED. — Where a mortgage is offered and admitted without the opposing party noting any exception, and it was only on the following day to which the case was adjourned in order to give counsel for the defendant time to deliberate as to whether or not be desired to present evidence, that an exception was noted, this was not a compliance with section 142 of the Code of Civil Procedure.
2. MORTGAGES; VALIDITY BETWEEN THE PARTIES THERETO; SECTION 194 OF THE ADMINISTRATIVE CODE, AS AMENDED, CONSTRUED. — Where a mortgage may have been defective as to the description of the real estate which it purported to cover, but nevertheless was registered in the office of the register of deeds, it is valid between the parties thereto.
D E C I S I O N
On March 10, 1922, Santiago Fian executed an instrument in favor of Yap Anton in which the former acknowledged a debt in the amount of P33,000 due the latter, and accomplished a mortgage on ten parcels of land. The document was recorded in the office of the register of titles. Fian having failed to make payment as provided in the mortgage, after his death Yap Anton began an action of foreclosure against the estate of the deceased, and judgment to this effect was obtained in the Court of First Instance of Leyte.
On appeal, the sole argument advanced on behalf of the defendant and appellant is addressed to the point that the instrument is not a true contract of mortgage, and consequently can have no legal force. There are two very plain reasons why this argument can not be accepted. In the first place, the mortgage was offered in evidence and admitted without the opposing party noting any exception, and it was only on the following day, to which the case was adjourned in order to give counsel for the defendant time to deliberate as to whether or not he desired to present evidence, that an exception was noted. This was not a compliance with section 142 of the Code of Civil Procedure, for the party excepting to the ruling did not "forthwith inform the court that he excepts to the ruling." (Abrenica v. Gonda and De Gracia , 34 Phil., 739.) In the second place, section 194 of the Administrative Code, as amended by Acts Nos. 2837 and 3344, now governs, and in accordance therewith, whatever be the view as to the validity of the mortgage as to third parties, such an instrument is valid "between the parties thereto", even if not registered in the office of the register of deeds. The mortgage in question may have been defective as to the description of the real estate which it purported to cover, but notwithstanding was registered and the action here involves only the parties to the mortgage. (Estate of Mota v. Conception , 56 Phil 712.)
For the two reasons above indicated, the principal assignment of error will have to be overruled, with the result of affirming the judgment appealed from, the costs of this instance to be paid by the Appellant.
Villa-Real, Abad Santos, Hull and Imperial, JJ., concur.