1. MORTGAGES; ORDER DIRECTING SALE OF MORTGAGED PROPERTY; WHERE JUDGMENT NEITHER REQUIRE MORTGAGORS TO PAY NOR GRANTED 90-DAY PERIOD. — Where a judge directs the execution of a judgment which neither contains an order requiring the mortgagors to pay their obligation to the mortgagees nor grants said mortgagors the 90-day period within which to pay the mortgaged debt, as provided in section 2 of Rule 70 of the Rules of Court, which should be counted from the date of service of the order directing the mortgagors to pay their obligation to the mortgages, and no such order having, as yet, been issued, it follows that the orders directing the sale of the mortgaged property and denying reconsideration thereof are null and void, as held in Ponce de Leon v. Ibañez, Et Al., 95 Phil., 119.

Petitioners Ramon Herrera, Et. Al. seek a writ of certiorarito annul certain orders of the Court of First Instance of Negros Occidental, issued by respondent Judge, Hon. Francisco Arellano. The controversy stems from the proceedings in civil case No. 8181 of the Court of First Instance of Negros Occidental, entitled "Ramon Herrera, Et Al., v. The Provincial Sheriff of Negros Occidental, Siuliong & Co., Inc., and Francis Cu Unjieng." The pertinent facts are set forth in a decision therein rendered, on appeal, by the Court of Appeals (CA — G. R. No. L-6388-R) on August 18, 1952, from which we quote:jgc:chanrobles.com.ph

". . . In September of 1920, Ramon Herrera, in his capacity as judicial guardian of his minor children Ricardo, Arturo, Dulcelina, and Cristeto Herrera, borrowed P7,000 from Siuliong & Co., payable with 12 per cent annual interest. Between 1920 and 1930, he also borrowed various other sums of money, and upon liquidation made on June 31, 1930, the total sum due was ascertained to be P14,176.26 after deducting payments made.

"While these acts of the guardian appeared to be unauthorized by the Court, the wards, upon attaining majority, by public documents executed on February 20 and 21, 1931 (Exh. 1 Rec. App., pp. 24-37) and April 26, 1934 (Exh. 2, pp. 38-53), confirmed the previous arrangements and manifested their entire agreement to the liquidation of their accounts, and compromised the case filed for the recovery of the sum due (No. 8442 of the Court of First Instance of Iloilo), by promising to pay Siuliong & Co., Inc., the acknowledged balance of P14,176.26, plus interest at 6 par cent per annum from July 31, 1930, on or before October 31, 1932. The debtors bound themselves to pay 10 per cent attorney’s fees in case of suit for collection; and to deliver to the creditor in part payment the sugar corresponding to their 1/4 interest in the Hacienda San Roque, which interest they mortgaged to secure the payment of the indebtedness. The mortgagors further stipulated not to alienate, convey, mortgage, or in any wise encumber their rights and interests without written consent of the mortgagee.

"By separate notarial instrument dated March 12, 1932 (Exh. 4), the spouses Ramon Herrera and Rosa Gallo compromised the pending civil case No. 8441 of the Court of First Instance of Iloilo, filed against them by Siuliong & Co., Inc., by acknowledging an indebtedness in favor of the latter in the sum of P39,084.21 as balance of their former account and promised to pay said sum, jointly and in solidum, with interests at 6 per cent per annum, from April 1, 1931, to be liquidated and compounded annually, on or before December 31, 1932; to pay 25 per cent attorneys’ and collection fees in case of suit for collection; to deliver to the creditor their entire share of the sugar produced at Hacienda San Roque for credit against the debt; not to alienate or transfer, mortgage or otherwise encumber, their rights and interest, and to guarantee payment by mortgage of their 1/4 interest in the Hacienda San Roque, the house on Lot 91 of the Manapla Cadastre, plus the parcels of land designated as Lots 145, 226, and 363 of the Cadastral Survey of Manapla, and certain work animals described in the deed (Exh. 4, Rec. App., pp. 63-77).

"Both mortgage credits were assigned by the creditor Siuliong & Co., Inc. to Francisco Cu Unjieng, by public instrument executed on September 26, 1935 (Exh. 3, Rec. App., pp. 54-63; Exh. 3A of the Exhibit folder).

"It is also admitted that from 1937 to 1945, the Hacienda San Roque was leased by the mortgagors to Ricardo Herrera and Lope Ilustre without the consent of the appellees.

"On December 6, 1934, the mortgagee Siuliong & Co., Inc. notified the mortgage debtors that the balance of their accounts as of November 30, 1934 amounted to P14,740.25 for Ricardo Herrera and his brothers, and P45,904.37 for Ramon Herrera and Rosa Gallo, and gave notice of their intention to foreclose the mortgages on January 12, 1935 (Exhs. 5-a and 10-a). Apparently, the sale was not carried out, for on August 28, 1936, the lawyers of the mortgagee wrote the debtors complaining that the land taxes of the mortgaged property had not been paid and the mortgagee had been forced to disburse the same (Exh. 7-A). Once again, on July 12, 1937, the mortgagees demanded satisfaction of the indebtedness (Ex. 9). Attempts to settle and compromise were fruitless (Exhs. K to P) and . . ." (Record, pp. 34-36.)

hence, on October 14, 1939, the mortgagors instituted said case No. 8181 against the mortgagees and the Provincial Sheriff of Negros Occidental,

". . . for an accounting and to set aside an extrajudicial foreclosure of certain mortgages in favor of appellee Siuliong & Co., and assigned by it to co-appellee Francisco Cu Unjieng. On December 1, 1939, the answer was filed, pleading the due execution of mortgages on an undivided one-fourth (1/4) of Hacienda San Roque (Lots 91 and 219 of the Manapla Cadastre) to guarantee an obligation that had a balance of P17,076.79 as of January 1, 1938, due from and unpaid by plaintiffs-appellants Cristeto, Ricardo, Arturo, and Dulcelina Herrera; and another mortgage on a second undivided fourth of the Hacienda San Roque, plus Lots 145, 225, 226 and 363 of the Manapla Cadastre, to answer for a balance of P59,815.69 due as of January 1, 1938 from plaintiffs Ramon Herrera and Rosa Gallo; counter-claimed nonpayment and breach of the obligations of the mortgage by reason of the lease of the properties without defendants’ consent; and prayed for judgment thereon with interest and attorneys’ fees, and for a decree of judicial foreclosure.

"The case (Civil Case No. 8181 of Negros Occidental) was first decided on May 12, 1941, dismissing the complaint but without rendering judgment for defendants in view of a stipulation for extrajudicial foreclosure and sale of the mortgaged properties. Upon seasonable petition for reconsideration by defendants, and motion for new trial by plaintiffs, the Court granted a reopening, setting it for August 25, 1941. Hearing was accordingly held on October 23, 1941, but no decision was rendered.

"On February 15, 1947, defendants filed a petition for rendition of judgment, alleging that the records of the case were intact. As plaintiff Rosa Gallo had died in the meantime, she was ordered substituted by her heirs.

"On May 10, 1947, the plaintiffs objected to the petition for judgment, invoking the moratorium order No. 32 (Rec. App., p. 149), a petition reiterated on August 27, 1947 (Rec. App., p. 165). The lower court, overruling the objection, rendered judgment on March 30, 1949 as follows:chanrob1es virtual 1aw library

‘(a) Bajo la primera reconvencion, condenando a los demandados Ricardo Herrera, Arturo Herrera, Dulcelina Herrera y Cristeto Herrera a pagar la cantidad de P18,274.88, suma debida en 31 de diciembre de 1939, con intereses a razon de 6 por ciento anual desde enero 1, 1940, hasta su completo pago; a pagar honorarios de abogado equivalente a 10 por ciento de la deuda hipotecaria debida a la incoacion de la presente accion, o sea en la cantidad de P1,827.48;

‘(b) Bajo la seunda reconvencion, condenando a los demandados Ramon Herrera y Lope Ilustre, Bernardo Ilustre, Carlos Ilustre y Rosario Ilustre, estos cuatros ultimos como herederos legales y en sustitucion de Rosa Gallo, a pagar la suma de P59,322.07, cantidad debida en 31 de diciembre de 1939, con intereses a razon de 6 por ciento anual desde enero 1.o de 1940 hasta su completo pago; a pagar honorarios da abogado equivalente a 10 por ciento de la deuda hipotecaria; debido a la incoacion de la presente accion, o sea la cantidad de P5,932.27;

‘(c) Ordenando a dichos demandantes a pagar las cantidades arriba especificadas en el Juzgado dentro de noventa (90) d