1. JUDGMENTS; NOT JOINT AND SEVERAL UNLESS SO PROVIDED. — When it is not provided in a judgment that the defendants are liable to pay jointly and severally a certain sum of money, none of them may be compelled to satisfy in full said judgment.

2. ID.; CORRECTION AFTER JUDGMENT HAS BECOME EXECUTORY. - A court has no legal authority to correct a mistake that goes to the very substance of the controversy after the judgment has become executory. Only clerical errors, or mistakes or omissions plainly due to inadvertence or negligence may be corrected or supplied after the judgment has been entered.

3. ID.; ID.; FAILURE TO GIVE JOINT AND SEVERAL JUDGMENT NOT CLERICAL MISTAKE. - Granting that the omission in the judgment to order the defendants to pay jointly and severally is a mistake, it is not one which is clerical and may be corrected after entry of final judgment.

4. ID.; FINAL JUDGMENT DISTINGUISHED FROM OPINION. — The final judgment as rendered is the judgment of the court irrespective of all seemingly contrary statements in the decision. "A judgment must be distinguished from an opinion. The latter is the informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So, . . . there is a distinction between the findings and conclusions of a court and its judgment. While they may constitute its decision and amount to the rendition of a judgment they are not the judgment itself. They amount to nothing more than an order for judgment, which must, of course, be distinguished from the judgment." (1 Freeman on Judgments, p. 6.)

5. ID.; ID.; CLAIM OR DEMAND MERGED IN JUDGMENT. — When a claim or demand has been put in suit and has passed on to final judgment, it is merged and swallowed up in the judgment and loses its vitality. All the particular qualities of the claim are merged in the judgment. And this rule applies to all claims or demand. (34 C. J., 752, 754.) "It is of no consequence that . . . the obligation contracted by the sureties was joint and several in character. The final judgment, which superseded the action brought for the enforcement of said contract, declared the obligation to be merely joint, and the same cannot be executed otherwise."cralaw virtua1aw library

6. ID.; ID.; MODIFICATION OF DECISION ON REGULAR RECONSIDERATION. — "It is well settled that a decision concurred in by the entire bench cannot be modified, except on regular reconsideration." (5 C. J. S., 1485.)

The case concerns a proposed modification of a final judgment. The earnestness with which the petition is maintained will be our excuse for making this decision more lengthy than the nature of the case in other circumstances would warrant.

Patricio Contreras and Jerusalem Gingco brought a suit against the China Banking Corporation, Inc., and Juan V. Molina and Teodora Arenas, husband and wife, to annul a mortgage executed by the spouses in favor of the Bank and to recover damages. The Court of First Instance of Manila, the Honorable Jose O. Vera presiding, absolved the Bank and condemned the other two defendants to pay various amounts in various concepts with certain deductions. The lower court’s judgment in full is as follows:jgc:chanrobles.com.ph

"Por los hechos y razones expuestos, se dicta decision en esta causa, declarando:jgc:chanrobles.com.ph

"(1) Que la hipoteca otorgada a favor de The China Banking Corporation es valida, pues el banco obro de buena fe;

"(2) Condenando a Juan V. Molina y Teodora Arenas a pagar a Jerusalem Gingco en concepto de indemnizacion de daños y perjuicios la cantidad de P2,000;

"(3) Obligando a los conyuges Juan V. Molina y Teodora Arenas a pagar la deuda hipotecaria al banco The China Banking Corporation a fin de que las accesorias y las dos puertas adicionales no tengan gravamen alguno. Si no lo hacen dentro de treinta dias despues de quedar firme esta sentencia, Jerusalem Gingco puede hacer ese rescate, cargando la deuda hipotecaria a cuenta de Juan V. Molina y Teodora Arenas, pudiendo incluirse en la ejecucion que se expida en esta causa el cobro de lo que Jerusalem Gingco pague al banco por dicha hipoteqa;

"(4) Del credito de Jerusalem Gingco contra Juan V. Molina y Teodora Arenas de P4,836.31 en la causa No. 44960, se debe deducir el exceso de lo pagado por Teodora Arenas en la subasta publica que hubo con motivo de la ejecucion expedida en la causa No. 36669. Dicho exceso es de P576,25, que se debe deducir de los P4,886.31.

"(5) Que los conyuges Juan V. Molina y Teodora Arenas paguen a Jerusalem Gingco P2,520 por los alquileres de las dos puertas adicionales a razon de P30 mensuales (P15 por puelta), correspondiente al periodo del 4 de Septiembre de 1934 al 4 de Septiembre de 1941. Desde esta ultima fecha, dichos demandados del eran pagar a Jerusalem Gingco P30 mensuales hasta que dichas puertas adicionales sean entregadas a su propietaria Jerusalem Gingco.

"(6) Los demandantes, tan pronto hayan cobrado algo de los demandados Juan V. Molina y Teodora Arenas, deben pagal los derechos de escribania por esta causa.

"(7) Se condena a Juan V. Molina y a Teodora Arenas a pagar las costas del presente juicio."cralaw virtua1aw library

From that judgment, the plaintiffs appealed, but not any of the defendants. The parts of the decision to which the plaintiffs took exception were thus specified in the notice of appeal:jgc:chanrobles.com.ph

"(a) En cuanto declara valida la hipoteca otorgada por los demandados Juan V. Molina y Teodora Arenas a favor de su codemandada The China Banking Corporation, y al no condenar a esta pagar indemnizacion a los demandantes.

"(b) En cuanto declara que, si los demandados Molinas dejaren de jagar su deuda hipotecaria al Banco demandado a fin de que las accesorias en cuestion esten libres de toda carga y gravamen, la demandante Jerusalem Gingco puede hacer el rescate, pudiendo cluirse en la ejecucion que se expida en esta causa el cobro de que esta pague al Banco por dicha hipoteca y,

"(c) En cuanto declara que, el credito de Jerusalem Gingco contra los demandados Molinas a cuenta del importe de la sentencia en el unto civil No. 44960 era solamente de P4,836.31 en vez de P6,951.31."cralaw virtua1aw library

In due time this court rendered judgment couched in these words:jgc:chanrobles.com.ph

"For all the foregoing, the deed of mortgage dated November 8, 1930, is declared null and void as to the one-half of the mortgaged property belonging to Jerusalem Gingco and rescinded as to the remaining one-half belonging to the spouses Molina, and the appealed decision is modified by ordering all the defendants to pay Jerusalem Gingco the amount of P6,951.31, plus the additional amount of P30 monthly from September 4, 1934, to September 4, 1941, and to continue paying the same monthly amount thereafter until the two new doors of the accesoria in question are delivered to said Jerusalem Gingco. The defendants shall also pay the filing fees of the complaint in the lower court and the costs in both instances." (Contreras and Gingco v. China Banking Corporation, 76 Phil., 709, 716, 717.)

After this judgment was entered, the case was sent back to the lower court and execution was issued. The sheriff at first undertook to collect from the China Banking Corporation one-half of the judgment, upon the indication, it i8 claimed, of the plaintiffs’ attorney, but objection by the bank having been filed with the court, the Honorable Alfonso Felix, judge, one of the respondents herein, ordered that the portion of the judgment due from this defendant was only one-third. The latter amount was later paid by the bank and turned over to, and receipted for by, the plaintiffs’ counsel. It so happened that the other defendants were insolvent, whereupon the execution creditors asked for an alias execution against the bank for the unpaid balance of the judgment. That motion was denied and the present petition for mandamus was the off-shoot.

It was contended below, and it is contended here, that the act of the bank was tortuous and falls under the provision of article 1902 of the Civil Code so that its llability is joint and several.

There is no dispute, and it can be said with confidence, that the China Banking Corporation’s liability under the terms of the judgment of this court is merely joint, joint in the sense in which the word is understood in the civil law. "It is already a well-established doctrine in this jurisdiction that, when it is not provided in a judgment that the defendants are liable to pay jointly and severally a certain sum of money, none of them may be compelled to satisfy in full said judgments." (Oriental Commercial Co. v. Abeto and Mabanag, 60 Phil., 723, citing De Leon v. Nepomuceno and De Jesus, 37 Phil., 180, and Sharruf v. Tayabas Land Co. and Ginainati, 37 Phil., 655.) That ruling is in entire harmony with articles 1137 and 11S8 of the Civil Code.

Under that doctrine the lower court has no legal authority under any circumstances to make the change sought by the plaintiffs; and this court itself may not make the change after the judgment has become executory. According to that decision a mistake such as that here alleged, if it be a mistake, is not clerical; it goes to the very substance of the controversy.

Only clerical errors, or mistakes or omissions plainly due to inadvertence or negligence may be corrected or supplied after the judgment has been entered. "The power of courts to correct clerical errors and misprisions and to make the record speak the truth by nunc pro tunc amendments after the term does not enable them to change their judgments in substance or in any material respect. Consequently it is well-settled that, in the absence of statute permitting it; the law does not authorize the correction of judicial errors, however flagrant and glaring they may be, under the pretense of correcting clerical errors." (1 Freeman on Judgments, pp. 269-271.)

"The general power to correct clerical errors and omissions does not authorize the court to repair its own inaction, to make the record and judgment say what the court did not adjudge, although it had a clear right to do so. The court cannot under the guise of correcting its t record put upon it an order or judgment it never made or rendered, or add something to either which was not originally included although it might and should have so ordered or adjudged in the first instance. It cannot thus repair its own lapses and omissions to do what it could legally and properly have done at the right time. A court’s mistake in leaving out of its decision something which it ought to have put in, and something in issue of which it intended but failed to dispose, is a judicial error, not a mere clerical misprision, and cannot be corrected by adding to the entered judgment the omitted matter on the theory of making the entry conform to the actual judgment rendered." (Id., p. 273.)

Slight reflection will show the wisdom of this rule. The necessity of giving finality to judgments that are not void is self-evident. The interests of society impose it. The opposing view might make litigation "more unendurable than the wrongs it is intended to redress." It would create doubt, real or imaginary, and controversy would constantly arise as to what the judgment or order was. As this court has announced, "public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by the law. The very object for which courts were instituted was to put an end to controversies." (Layda v. Legazpi, 39 Phil., 83; Dy Cay v. Crossfield & O’Brien, 38 Phil., 521.)

We have no cause to depart from this rule. It is a rule that must be adhered to regardless of any possible injustice in a particular case. It is not a legal concept to the flexible kind, capable of being individualized to meet the needs of varying conditions. "We have to subordinate the equity of a particular situation to the overmastering need" of certainty and immutability of judicial pronouncements. The loss to the litigants in particular and to society in general "would in the long run be greater than the gain, if judges were clothed with power to revise" their decisions at will. "Perhaps, with a higher conception" of the administration of justice and its needs, "the time will come when even revision will be permitted if revision is in consonance with established standards" of court functions, "but the time is not yet."cralaw virtua1aw library

It would be tedious to give illustrations of clerical mistakes, errors and omissions, correction of which might be permitted. It suffices for the purpose of this decision to say that the mistake under consideration, if it be a mistake, is not of the apparent exceptions, at least in this jurisdiction.

In truth, there is no proper and sufficient showing here that the alleged mistake was due to inadvertence on the part of the court. We have been through with the decision and have not detected in it any clear purpose or intention to make the defendants jointly and severally liable. In all probability, the nature of defendants’ liability (whether joint or joint and several) was not touched upon at all by the parties and was not even given thought by them or by the court. The point was involved in obscurity. As the judgment of the lower court plainly indicates, the case was very intricate, complicated by a multiplicity of claims and counterclaims arising from different juridical acts and sought from different parties who sustained diverse relationships to the plaintiffs and to each other with reference to the separate items. It is not to be wondered at if the finer point of solidarity among the defendants was swallowed up and lost in the maze of these claims and counterclaims over the validity of which the three-cornered contest was centered and bitterly waged. The uncontroverted facts alone are so complex that more than one close reading of either decision is needed to get a comprehension grasp of them.

The fact that the plaintiffs’ attorney instructed the sheriff to levy execution on the bank for only one-half of the judgment, when it could have demanded the whole amount from that entity if its liability was joint and several, offers itself as possible proof that in the mind of the petitioners themselves this defendant was to bear only a pro-rata share of the indebtedness. In other words, if the bank’s liability, in plaintiffs’ opinion, was solidary, they had the option to exact the payment of the entire amount due from any of the defendants, subject to the right of the payor to collect from the others their proportionate shares the obligation. It would seem that the plaintiffs became wise to the question of solidarity among the defendants only when the matter of whether the bank should pay ,one-half or one-third of the judgment came before the court below.

It is said that the judgment is at variance with the context of the decision. Granting this for the moment to be the case, yet the discrepancy pointed out is not of the nature that would justify modification of the judgment. The principles we have cited in the preceding paragraphs should put this matter at rest. More to the point is another well-recognized doctrine, that the final judgment as rendered is the judgment of the court irrespective of all seemingly contrary statements in the decision. "A judgment must be distinguished from an opinion. The latter is the informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So, . . . there is a distinction between the findings and conclusions of a court and its Judgment. While they may constitute its decision and amount to the rendition of a judgment, they are not the judgment itself. They amount to nothing more than an order for judgment, which must, of course, be distinguished from the judgment." (1 Freeman on Judgments, p. 6.) At the root of the doctrine that the premises must yield to the conclusion is perhaps, side by side with the needs of writing finis to litigations, the recognition of the truth that "the trained intuition of the judge continually leads him to right results for which he is puzzled to give unimpeachable legal reasons." "It is an everyday experience of those who study judicial decisions that the results are usually sound, whether the reasoning from which the results purport to flow is sound or not." (The Theory of Judicial Decision, Pound, 36 Harv. Law Review, pp. 9, 51.) It is not infrequent that the grounds of a decision fail to reflect the exact views of the court, especially those of concurring justices in a collegiate court. We often encounter in judicial decisions, lapses, findings, loose statements and generalities which do not bear on the issues or are apparently opposed to the otherwise sound and considered result reached by the court as expressed in the dispositive part, so called, of the decision.

But is there really any conflict between the considerations or findings and the judgment of this court? It appears that the sole reliance of the petitioners is on the statement in the decision, viz. : that "the assignment of error is also well taken" and that "the China Banking Corporation must answer for the amounts above-mentioned as a consequence of our conclusion as to the nullity of the mortgage." That statement had reference to the second assignment of error which complained, in the words of this court, of the trial court’s "failure to order the China Banking Corporation to indemnify Jerusalem Gingco in the amount of P6,951.31, which was adjudicated in her favor in Civil Case No. 44960 of the Court of First Instance of Manila, and which appellant failed to collect in view of the third-party claim fled by said bank, and the rents which said appellant failed to collect from accesorias Nos. 1636, 1630 (1637) and 1639 at the rate of P65 a month, beginning from September l, 1934." That comment and the second assignment of error did not exhibit any intention, let alone plain intention, to hold the China Banking Corporation liable in solido. The idea of solidarity is no more manifest than the idea mere joint liability among the co-obligors. If there was y intention to make the defendants’ obligation under the judgment solidary, it is not apparent from the language employed. If there was inadvertence on the part of the court, the omission was not so obvious as to justify certification. Nowhere in the decision is there any reference to article 1902 of the Civil Code, or unequivocal declaration that each of the defendants was bound to the performance or payment of the entire judgment.

Even if the liability of the bank arose from tort and is solido, it is now too late to enforce that liability in the anner specified in the applicable provisions. When a claim r demand has been put in suit and has passed on to final judgment, it is merged and swallowed up in the judgment d loses its vitality. All the particular qualities of the aim are merged in the judgment. And this rule applies all claims or demand. (34 C. J., 752, 754.) In another connection this court has ruled: "It is of no consequence that . . . the obligation contracted by the sureties as joint and several in character. The final judgment, which superseded the action brought for the enforcement f said contract, declared the obligation to be merely joint, and the same cannot be executed otherwise." (Oriental Commercial Co. v. Abeto and Mabanag, supra.) It is immaterial, therefore, whether the obligation of the defendants arose from law, contract or culpa. It is "the final judgment (that) determines and is the source of the rights and obligations of the parties . . ." (Oriental Commercial Co. v. Abeto and Mabanag, supra.)

Emphasis is also laid on the fact that the spouses Molina d Arenas did not appeal. The petitioners advance the proposition that since these defendants did not appeal they are excluded from the appellate court’s jurisdiction. hey go so far as to insinuate or say that the China Banking Corporation alone is answerable for the judgment rendered by this court. The position thus taken by the petitioners is highly untenable and inconsistent with their main thesis.

If Molina and Arenas did not question the trial court’s decision, the plaintiffs did appeal from the judgment, not as it affected the bank only but also the other defendants. The notice of appeal will show that the plaintiffs opened up, among other questions, that of the extent of Molina’s and his wife’s liability to the plaintiffs as well as the bank’s. The bank did not appeal either, for that matter, but it was condemned nevertheless. That Molina and his wife did not appear and file a brief in this court did not operate to rule them out of the case. The best refutation of the petitioners’ contention is the fact that the amounts which Molina and his wife were sentenced to pay by the court below were increased by this court.

The authorities cited by the petitioners do not shed any light on this issue. It can be seen at a glance that there is no analogy between this case and the cases relied upon by counsel.

There is one feature of the case affecting the question of practice and procedure which should not be allowed to escape our attention.

A motion for reconsideration styled "Motion for Clarification" was presented in this court before the present petition was docketed. That motion was denied on the grounds that clarification was unnecessary and that the judgment had become final. (This, by way of parenthesis, may be said to mirror the concept which this court had of the alleged error; namely, that the error, if it be error, was of judicial and not clerical character.) By the motion for an alias execution the petitioners were after exactly the same thing that we had refused to grant them. They simply turned around and took a circuitous and narrower path that led to the same goal. By appealing from the lower court’s denial to issue an alias execution, the plaintiffs now try to obtain by indirection what they failed to get directly. The procedure is indeed anomalous and success of the petition would lead to anomalous consequences. How?

1. "It is well settled that a decision concurred in by the entire bench cannot be modified, except on regular reconsideration." (5 C. J. S., 1485.) The change the petitioners would have us make would constitute modification of the judgment; they would have a new matter of substance inserted therein. This matter — that the bank’s liability is not joint but solidary — was not put in issue in the original case and there does not appear to have been any hearing or voting on this specific point. This matter goes to the merits, and hearing and voting thereon can properly be had only by going into the whole record of the main case. On the other hand, adequate study of the whole case can not be accomplished except on a regular motion for reconsideration such as the one we dismissed. In other words, for the purpose of modifying the judgment the proceeding must be direct and not, like the present proceeding, collateral. Direct proceeding on a regular motion for reconsideration would be all the more necessary, if the motion for amendment were to be entertained, because some of the justices who signed the decision have resigned and the new members who have taken their places did not have the benefit of hearing the arguments and going over the pleadings and evidence. The scope of our authority on a petition for mandamus, which is a special proceeding, is limited to an examination of the allegations therein and in the answer, and perhaps of the decision of this court, which was not attached to as part of the petition. Under such petition the pleadings, the evidence and the briefs in the main cause are not legally brought before us. Quite apart from this technical barrier, the record of the case has actually been returned to the court of origin.

2. Granting of the petition for mandamus would not be an amendment by this court of its decision. In form, it would be a command to the court below to do as the petitioners asked. In its implications, it would be a sanction for inferior courts, in the process of execution, to change judgments of courts of superior jurisdiction in the light of what they believe is the intention of the higher court as gathered from statements in the body of the decision. It would be taken as a green-light signal for inferior courts to probe into the decisions of superior courts to verify if the judgment conforms to the text. The result of such practice would be intolerable. That the lower court’s decision might be appealable would not remedy the situation greatly. In the present case there would be the added paradox that we would reverse the lower court for refusing to allow precisely what this court itself — the author of the decision which was in the best position to say what the decision meant — denied because the judgment was clear and had acquired finality.

For the foregoing considerations, the petition is denied without costs.

Moran, C.J., Paras, Hilado, Bengzon and Hontivenor, JJ., concur.



PADILLA, J., concurring:chanrob1es virtual 1aw library

I concur with reluctance in the opinion of the majority. I say with reluctance, because I am convinced that the liability of the respondent bank is several (solidaria). It was the bank, as mortgagee, that caused the failure of the petitioner Jerusalem Gingco to collect the money judgment in civil case No. 44960 of the Court of First Instance of Manila because of its third party claim filed with the sheriff. That liability is tortious and not contractual as far as the petitioner Jerusalem Gingco is concerned; and’ for that reason, the liability arising therefrom is exclusively of the bank. Even assuming that the mortgage was valid, a mere mortgagee is not entitled to file a third party claim, because it is only title to, or right to possession of, the property levied upon execution that gives a party the right to file such claim (section 451, Act No. 190; section 15 Rule 39), and because the real right of the mortgagee is always protected and secured, if validly executed and registered, against subsequent claims and levies upon execution. I am also persuaded that the responsibility of the spouses Juan B. Molina and Teodora Arenas is of one party and not of two, so that if by the terms of the judgment the liability is joint (mancomunada), the bank s share of the responsibility must be one-half and not one-third. Nevertheless, I cannot but give my assent to the principles enunciated in the opinion of the majority, for there must be an end to a litigation, and the respondent court when executing a final judgment, must strictly adhere to its terms. The respondent court is not authorized to construe a judgment by resorting to other parts of the decision upon which such judgment is premised. While I regret the unfortunate result for the petitioners, the benefits, however, to be derived from the observance of the sound rules set forth in the opinion of the majority more than offset the wrong intended to be remedied or redressed.

PERFECTO, J., dissenting:chanrob1es virtual 1aw library

Many years ago, giving expression to a concept of profound wisdom, Mr. Justice Cardozo said:jgc:chanrobles.com.ph

"The law has outground its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today." (Wood v. Lucy, New York.)

The present case shows a backward overleaping on the new concept chiseled by Mr. Justice Cardozo with unsurpassed mastery. The decision of this case offers a conclusive evidence of the need of rediscovering the legal truth already revealed in the above quotation.

Only because the stringent and unyielding verbal formula of "jointly and severally" has not been used, the victim of fraud is unjustly deprived of two-thirds of the indemnity due her for the damages suffered. Because the hicratic words of the exorcismal shibboleth were omitted in a decision, full responsibility cannot be exacted from the perpetrator of the fraud, who is to be relieved and exempted from paying two-thirds of the damages caused. Again we are under the magic spell of the sovereign talisman of the precise word. Under its restored regime, while the victim of a fraud is made to suffer, the scoundrel is happily re-warded. Verbal rigidity burkes right and enthrones wrong. The hiorograph of exorcism sanctifies fraud and smothers the claims of fairness, justice and equity.

Emancipation from the shackles of empty formalism is an enterprise that imposes new duties to the judiciary. That enterprise should be undertaken if many failures of justice are to be avoided. The system of justice by mantras belongs to the past. Right or wrong should not be judged upon the charm of a syllable or a group of syllables, as the Hindus would synthesize the triple constitution of the cosmos, the Absolute, the Relative and the relation between them, in the single sound of om. Words are not geometrical figures by which right or wrong may be measured with mathematical inflexibility. They are manifestations of life, and life is never geometrical, algebraic or mathematical. The law rules human relations, and human relations are expressed and manifested with infinite variety incompatible with the fixity of ritualistic words.

In the case of Contreras and Gingco v. China Banking Corporation, the Second Division of the Supreme Court rendered on May 25, 1946, a decision declaring w without effect the deed of mortgage, dated November 8, 1930, executed by defendant spouses Juan B. Molina and Teodora Arenas, in favor of their co-defendant, the China Banking Corporation and ordering "all the defendants to pay Jerusalem Gingco the amount of P6,951.31, plus the additional amount of P30 monthly from September 4, 1934, to September 4, 1941, and to continue paying the same monthly amount thereafter until the two new doors of the accesoria in question are delivered to said Jerusalem Gingco." (76 Phil., 709, 716, 717.)

Spouses Arcadio Gingco and Dolores Contreras were the owners of two accesorias made of strong materials located at Sande St., Tondo, Manila. On June 23, 1928, Dolores Contreras died, leaving as her only heirs her husband and their daughter Jerusalem Gingco. On November , 1928, the widower sold the accesorias to defendants Juan B. Molina and Teodora Arenas. On June 24, 1930, action was instituted against the buyers for the annulment of the sale, and on August 22, 1930, the Court of First Instance of Manila rendered decision declaring the sale null and void as to one-half of the accesorias which belong to Jerusalem Gingco.

Notwithstanding said decision, on November 8, 1930, defendants Juan B. Molina and Teodora Arenas mortgaged the two accesorias in favor of the China Banking Corporation to answer for a loan of P2,000. The deed of mortgage was drawn and executed in the law office of Attys. Feria and La O, who were the attorneys of the China Banking Corporation and at the same time were the attorneys who represented Juan B. Molina and Teodora Arenas in the case in which the Court of First Instance of Manila declared null and void the sale of one-half of the accesorias in question belonging to Jerusalem Gingco. At the time of the execution of the deed of mortgage, the decision was not yet final, because it was appealed, but it did soon become final and executory with the withdrawal of the appeals on December 29, 1930.

In another case, on February 28, 1934, Jerusalem Gingco secured from the Court of First Instance of Manila a decision ordering the spouses Molina to pay her the amount of P4,836.31, one-half of the rents of the accesorias pertaining to Jerusalem Gingco and collected by the spouses Molina, plus rents the defendants may continue collecting on the property from November, 1933. The decision was affirmed by the Supreme Court on May 10, 1935. To make said amounts effective, execution was issued and the sheriff announced a public auction of one-half of the accesorias belonging to the spouses Molina. The public auction was stopped because the China Banking Corporation, represented by Attys. Feria and La O, the same representing the spouses Molina, filed a third party claim, thus defeating the collection by Jerusalem Gingco of the several thousand pesos ordered by final decision to be paid to her by the spouses Molina.

One of the grounds for our decision which was concurred in by Mr. Justice M. 11. de Joya, Mr. Justice Emilio Y. Hilado, and Mr. Justice Cesar Bengzoil, to declare null and void and rescind the deed of mortgage executed on November 8, 1930, by the spouses Molina in favor of the China Banking Corporation, was that the said mortgage was fraudulent, both parties in the contract of mortgage having been equally guilty of the fraud. Even Mr. Justice Ozaeta, who dissented from the rescission of the mortgage with respect to one-half of the property belonging to the spouses Molina, concurred with our conclusion that with respect to one-half of the property belonging to Jerusalem Gingco the mortgage has been executed "in bad faith." The China Banking Corporation cannot escape from this pronouncement because at the time the mortgage was negotiated and executed, the bank was represented by the same attorneys who were representing the spouses Molina and in the very case where the decision intended to be defeated by the mortgage was rendered, and it was in their law office where the fraudulent deed of mortgage was drafted and signed.

As Jerusalem Gingco was unable to collect from the spouses Molina the amount of P6,951.31 and other amounts mentioned in our decision, because of the third party claim filed by the China Banking Corporation on the strength of the fraudulent mortgage, there should not be any doubt that the China Banking Corporation is fully responsible for said amounts in favor of Jerusalem Gingco. The responsibility of said bank cannot be affected, increased or diminished, upon the character of the responsibility of the spouses Molina or their ability to pay said amounts. The responsibility of the bank is independent from the responsibility of the spouses Molina. Each one of the parties to a fraud is solidarily answerable for all the harms and damages caused by the fraud.

"A person who by an act or ommission cause damage to another by his fault or negligence shall be answerable for the damage caused." Article 1902, Civil Code.

"Moreover we are of the opinion that both the owner and agent (naviero) should be declared to be jointly and severally liable, since the obligation which is the subject of this action had its origin in a tortious act and did not arise from contract. Article 1137 of the civil Code, declaring that joint obligations shall be apportionable unless otherwise provided, has no application to obligations arising from tort." (Versosa and Ruiz, Rementeria y Cia. v. Lim and Siy Cong Bieng & Co., 45 Phil., 416, 423.)

After the case was remanded to the Court of First Instance of Manila for the execution of our decision, the respondent judge issued on July 23, 1946, an order for the execution of the decision, but with instructions to the sheriff that in carrying out the order of execution, the China Banking Corporation shall be made to pay only "one-third" of the total amount of the judgment of the Supreme Court.

Petitioners came to us to secure a mandamus against the lower court, to compel it to order the execution for the total amount of the judgment against the China Banking Corporation.

The pivotal question in this case, undisguised by technical trappings, is whether a party to a fraudulent transaction should be granted the benefits of an exemption from the payment of two-thirds (2/3) of the reparation and indemnification due to the victim of the fraud.

Presented in another form, the question we are called upon to answer is whether we are empowered to disregard article 1902 of the Civil Code, by reducing to one-third (1/3) the responsibility therein provided for damages caused by fault, in the present case aggravated by "bad faith."cralaw virtua1aw library

The dispositive part of our decision in Contreras and Gingco v. China Banking Corporation, supra, the execution of which against the China Banking Corporation is in issue, is as follows:jgc:chanrobles.com.ph

"For all the foregoing, the deed of mortgage dated November 8, 1930, is declared null and void as to the one-half of the mortgaged property belonging to Jerusalem Gingco and rescinded as to the remaining one-half belonging to the spouses Molina, and the appealed decision is modified by ordering all the defendants to pay Jerusalem Gingco the amount of Y6,951.31, plus the additional amount of P30 monthly from September 4, 1934, to September 4, 1941, and to continue paying the same monthly amount thereafter until the two new doors of the accesoria in question are delivered to said Jerusalem Gingco. The defendants shall also pay the filing fees of the complaint in the lower court and the costs in both instances."cralaw virtua1aw library

Respondents would like to have it interpreted to the effect that the China Banking Corporation shall have to pay only "one-third" of the amounts adjudicated, following the rules of interpretation set in articles 1137 and 1138 of the Civil Code, which read:jgc:chanrobles.com.ph

"Article 1137. The concurrence of two or more creditors, or of two or more debtors, in a single obligation does not imply that each of the former has a right to ask, or that each of the latter must give, in their entirety the things which are the object of such obligation. This shall obtain only when the obligation so expressly determines, by being constituted with the character of a solidary obligation.

"Article 1138. If from the context of the obligations referred to in the preceding article the contrary is not shown, the credit or the debt shall be presumed as divided into as many equal parts as there are creditors or debtors, each part to be considered as a distinct credit or debt from the others."cralaw virtua1aw library

Respondents’ position is based on the doctrine laid down in the case of Oriental Commercial Co. v. Abeto and Mabanag (60 Phil., 723) decided on October 10, 1934, the said doctrine having been firstly enunciated in the case of De Leon v. Nepomuceno and De Jesus (37 Phil., 180), decided about thirty years ago, on November 24, 1917.

An analysis of the decision in the case of De Leon v. Nepomuceno, supra will lead us to the conclusion that the doctrine was laid down on wrong foundations and, therefore, is liable to topple down at the slightest touch.

Three candidates ran for provincial governor of Tarlac: De Leon, Gardiner, and Torres. De Leon was declared elected. Gardiner protested, with notice to Torres, who was an unwilling party, having received a few complimentary votes and had no chance of being declared elected. Gardiner won the contest. Under sections 481 and 482 o