[G.R. No. 24797. March 16, 1926. ]
DOMICIANO TIZON, Plaintiff-Appellant, v. EMILIANO J. VALDEZ and LUIS MORALES, sheriff of the Province of Tarlac, Defendants-Appellees.
Jose G. Generoso for Appellant.
Felix B. Bautista for the appellee Valdez.
No appearance for the other appellee.
1. CHATTEL MORTGAGE; FAILURE TO SET FORTH EXISTENCE OF FIRST MORTGAGE IN LATER MORTGAGE; CIVIL RIGHTS OF MORTGAGEES NOT AFFECTED. — If one who has executed a chattel mortgage in favor of another executes a later mortgage on the same property in favor of a third person without setting forth therein the existence of the previous mortgage, the mortgagor becomes amenable to the penal provision contained in section 12 of the Chattel Mortgage Law, but such omission does not affect the civil rights of the two mortgagees.
2. ID.; WAIVE OF MORTGAGE LIEN; INSTITUTION OF ACTION TO RECOVER ON MORTGAGE DEBT; LEVY OF ATTACHMENT ON MORTGAGED PROPERTY. — The owner of a senior chattel mortgage does not waive the priority of his lien by recovering judgment on the mortgage debt and causing an execution to be levied on the mortgaged property. Nor is the case altered by the circumstance that upon beginning his civil action he causes an attachment to be issued and levied on such property.
3. ID.; FIRST AND SECOND MORTGAGE; RIGHT OF REDEMPTION IN SECOND MORTGAGEE. — After a chattel mortgage is executed there remains in the mortgagor a mere right of redemption, and only this right passes to a mortgagee under a second mortgage. As between a first and second mortgagee the latter cannot recover the property from the former without paying off the first mortgage.
D E C I S I O N
This action was instituted in the Court of First Instance of the Province of Tarlac by Domiciano Tizon against Emiliano J. Valdez and Luis Morales, the latter in the character of sheriff of Tarlac Province, for the purpose of obtaining a declaration to the effect that the plaintiff is the owner of certain chattels, consisting chiefly of a steam engine and boiler, described in the complaint, and to require the defendants to deliver the same to the plaintiff, with damages for the detention thereof and costs. The trial court having absolved the defendants from the complaint, the plaintiff appealed.
It appears that the personal property which is the subject of this action formerly belonged to one Leon Sibal, sr., by whom it was mortgaged, on September 14, 1920, to the defendant Valdez. On October 7, 1920, this mortgage was filed in the office of the register of the Province of Tarlac and was thereupon duly registered in the registry of chattel mortgages. On May 18, 1921, Sibal again mortgaged the same chattels to the plaintiff, Domiciano Tizon, whose mortgage was likewise duly registered in the chattel mortgage registry of Tarlac in June, 1921. No question is made with respect to the validity or good faith of either of these mortgages, but it should be stated that the mortgage to Valdez covered other property in addition to the engine and boiler in question and the debt secured in said mortgage is recited therein to be in the amount of P12,833.30, payable December 31, 1920, with interest from date of maturity at the rate of 12