[GRN L-8759 May 25, 1956]

SEVERINO UNABIA, petitioner and appellee, vs. THE HONOR ABLE CITY MAYOR, CITY
TREASURER, CITY AUDITOR and the CITY ENGINEER, respondents and appellants.
1. PUBLIC OFFICERS; EMPLOYEE ILLEGALITY' DISMISSED; INACTION FOR
REINSTATEMENT As ABANDONMENT OF OFFICE.-If an employee is illegally dismissed, he
may conform to such illegal dismissal or acquiesce therein, or by his inaction and by sleeping on
his rights he may in law be considered as having abandoned the office to which he is entitled to
be reinstated. These defenses are valid defenses to an action for reinstatement.
2. ID.; ACTION OF QUO WARRANTO; MUST BE INSTITUTED WITHIN ONE YEAR;
EXPRESSION OF POLICY OF STATE; THE SAME PERIOD APPLICABLE TO POSITIONS IN
CIVIL SERVICE.-In action of quo warranto involving right to an office, the action must be
instituted within the period of one year. This has been in the Island ,since 1901 the period
having been originally fixed in section 216 of the Code of Civil Procedure (Act No. 1901): This
provision is an expression of policy on the part of the state that persons claiming a right to an
office of which they are illegally dispossessed should immediately take steps to recover said
office and that if they do not do, so within a period of one year they shall be considered as
having lost their right thereto by abandonment. There are weighty reasons of public policy and
convenience that demand the adoption of a similar period for persons claiming rights to
positions in the civil service. There must be stability in the service so that public business may
not be undully retarded; delays in the settlement of the right of positions in the service must be
discouraged.
3. ID.; ACTION FOR REINSTATEMENT IN CIVIL SERVICE; TO BE INSTITUTED WITHIN ONE
YEAR.-In view of the period of one year within which actions for quo warranto may be instituted,
any person claiming right to a position in the civil service should also be required to file his
petition for reinstatement within the period of one year otherwise he is thereby considered as
having abandoned his office.
4. ID.; EMPLOYEE'S REMOVAL WITHOUT INVESTIGATION AND CAUSE NULL AND VOID.-
Where the removal of an employee is made without investigation and cause, said removal is null
and void and he is entitled to be reinstated to the position from which he was removed.
APPEAL from a judgment of the Court of First Instance of Cebu.
The facts are stated in the opinion of the Court.
Januanio T. Seno and Sabiniano E. Vasquez for appellee.
City Fiscal of Cebu and Quirico del Mar for appellants.
LABRADOR, J.:
Appeal from a judgment of the Court of First Instance of Cebu ordering respondents to reinstate
petitioner as foreman (capataz), Garbage Disposal, Office of the City Engineer, Cebu.City, at
P3.90 per day from the date of his removal.
The case was submitted to the court for decision on a stipulation of facts the most pertinent of
which are as follows: Petitioner was a foreman, Group Disposal, Office of the'City Health Officer,
Cebu City, at P3.90 per day On June 16, 1953, the City Mayor removed him from the service
and his place Was taken by Perfecto Abellana,and latter by Pedro E. Gonzales. Before June 16,
1953,the Group Disposal Division, including personnel, was transferred from the City Health
Department to the Office of the City. Engineer. In April, 1954, petitioner sought to be reinstated
but his petition was not headed by the respondents.
On the basis of the above facts, the Court of First Instance of Cebu held that petitioner is a
person in the Philippine Civil Service, pertaining to the unclassified service (section 670,
Revised Administrative Code as amended), and his removal from his position is a violation of
section 694 of the Revised Administrative Code and section 4 of Art XII of the Constitution. The
court further held that the notation at the bottom of petitioner's appointment to the effect that his
appointment is "temporary pending report from the Government Service Insurance .System as
Page 1 of 8
to the appointee's physical and medical examination" did not make his appointment merely
temporary.
First error assigned on this appeal is the failure to include in the complaint, the names of the
persons holding the Offices of City Mayor, City Treasurer, City Auditor and City Engineer, all of
Cebu City, they being designated only by their official positions. This is no reason for a reversal
of the proceedings and of the judgment. As said persons were sued in their official, capacity, it is
sufficient that they be designated by their official positions.It is also contended that the use of
capitals in the words "Civil Service" in section 1 and 4 of Article XII of the Constitution and the
use of small letters for the same words,dicivil service," in section 670, Revised Administrative
Code*, indicates that only those pertaining to the classified service are protected in the above-
mentioned sections of the Constitution. We see no validity in this argument.Capital "C" and "S"
in the words "Civil Service" were used in the Constitution to indicate the group. No capitals are
used in the similar provisions of the Code to indicate the system. We see no difference between
the use of capitals in the former and of small letters in the latter. There is no reason for
excluding persons in the unclassified service from the benefits extended to those belonging to
the classified service. Both are expressly de ciared to belong to the Civil Service; hence, the
same rights and priviliges should be accorded to both. Persons in the unclassified service are so
designated because the nature of their work and qualifications are not subject to classification,
which is not true of those appointed to the classified service., This, can not be a valid reason for
denying previleges to the former that are granted the latter.
As the removal of petitioner was made without investigation and without cause, said removal is
null and void and petitioner is entitled to be reinstated to the position from which he was
removed. (Lacson vs. Romero, 84 Phil., 740, 47 Off. Gaz. [4], 1778)
There is, however, an additional objection to the reinstatement raised in the memorandum
submitted by the attorneys for the respondents in lieu of oral argument.This is the fact that as.
petitioner was removed on June 16,1953 and only filed his petition on July 1, 1954, or after a
delay of one year and 15 days, petitioner should no longer be allowed to claim the remedy, he
being considered as having abandoned his office.We can not or should not overlook this
objection. If an employee is illegally dismissed, he may conform to such illegal 'dismissal or
acquiesce therein, or by his inaction and by sleeping on his rights he may in law be considered
as having abandoned the office to which he is entitled to be reinstated. These defenses are
valid defenses to an action for reinstatement. To that effect is our decision in the case of Mesias
vs. Jover, et al., 97 Phil., 899,decided November 22, 1955. In that case we cited with approval
Nicolas vs. United States, 66 L. Ed. 133, and the following ruling therein contained:
"A person illegally dismissed from office is not thereby exonerated from the obligation to take
steps for his own protection, and may not for an unreasonable length of time, acquiesce to the
order of removal * * * and then sue to recover the salary attached to the position. In case of
unreasonable delay he may be held to have abandoned title to the office and any right to
recover its emoluments."
(Mesias vs. Jover, supra.)
Difficulty in applying the principle lies in the fact that the law has not fixed any period which may
be deemed to be considered as an abandonment of office. In the above cited case decided by
the Federal Supreme Court of the United States, 11 months was considered an unreasonable
Dela amounting to abandonment of office and of the right to recover its emoluments. However,
we note that in actions of quo warranto involving right to an office,the action must be instituted
within the period of one year.This has been the law in the island since 1901, the period having
been originally fixed in section 216 of the Code of Civil Procedure (Act No. 190). We find this
provision to be an expression of policy on the part of the State that persons claiming a right to
an office of which they are illegally dispossessed should immediately take steps to recover said
office and that if they do not do so within a period of one year, they shall be considered as
Page 2 of 8
having lost their right thereto by abandonment. There are weighty reasons of public policy and
convenience that demand the adoption of a similar period for persons claiming rights to
positions in the civil service. There must be stability in the service so that public business may
be unduly retarded; delays in the statement of the right to positions in the service must be
discouraged. The following considerations as to public officers, by Mr. Justice Bengzon, may
well be applicable to employees in the civil service:
"Furthermore, constitutional rights may certainly be waived, and the inaction of the officer for
one year could be validly considered as waiver, i.e., a renunciation which no principle of justice
may prevent, he being at liberty to resign his position anytime he pleases."And there is good
justification for the limitation period; it is not proper that the title to public office should be
subjected to continued uncertainly, and the peoples' interest requires that such right should be
determined as speedily as practicable." (Tumulak vs.Egay, 46 Off. Gaz., [8], 3693, 3695.)
Further, the Government must be immediately informed or advised if any person claims to be
entitled to an office or a position in the civil service as against another actually holding it, so that
the Government may not be faced with the predicament of having to pay two salaries, one, for
the person actually holding, the office, although illegally,and another, for one not actually
rendering service al though entitled to do so. We hold that in view of the,policy of the State
contained in the law fixing the period of one year within which actions for quo warranto may be
instituted, any person claiming right to a position in the civil service should also be required to
file his petition for reinstatement within the period of one year otherwise he is thereby
considered as having abandoned his office.
One other point, merely procedural, needs to be considered. This is the fact that the objection
as to the delay in Ming the action is raised for the first time in this Court, not having been raised
in the court below.The above circumstance (belated objection) would bar the consideration if it
were a defense merely. However,we consider it to be essential to the petitioner's right of action
that the same is filed within a year from the illegal removal. The delay is not merely a defense
which may be interposed against it subject to waiver. It is essential to petitioner's cause of action
and may be considered even at this stage of the action.
"We would go farther by holding that the period fixed in the,rule is a condition precedent to the
existence of the cause of action,with the result that, if a complaint is not :flled within one year, if
cannot prosper although the matter is not set up in the answer or motion to dismiss." (Abeto, vs.
Rodas, 46 Off. Gaz., (31', 930, 932.)A defense of failure to state a cause of action is not waived
by failure to raise same as a defense (section 10, Rule, 9).For all the foregoing considerations,
we hold that ax,petitioner was dismissed on June 16, 1953 and did not me his petition for
mandamus for his reinstatement until' July 1, 1956, or after a period of one year, he is deemed
to have abandoned his right to his! former 'position and is not entitled to reinstatement therein
by mandamus..
Without costs. So ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A.,
Jugo, Bautista Angelo, Reyes, J. B. L., and Endencia, . JJ. P, concur.
CONCEPCION, J., dissenting:
I dissent. Delay in bringing an action can have no more effect than that of prescription of action
or laches.,It affects merely the "enforcement" of a right of' action,not the existence thereof. The
pdriod of one year for the comencement of the action in quo warranto proceedings.is prescribed
in the Rules of Court, which would be uncon stitutional if the,same should seek to affect the
cause of action, for then they would impair substantive rights.
Judgment reversed.
Punzalan vs. People May 25, 1956
[GRN L-8820 May 25, 1956]

Page 3 of 8
MARCIAL PUNZALAN, petitioner and appellant, vs. PEOPLE OF THE PHILIPPINES,
respondent and appellee.
COURTS; JURISDICTION; INFORMATION ALLEGING PHYSICAL INJURIES OF SEVEN
DAYS MEDICAL ATTENDANCE; MALTREATMENT WITH EVIDENT PURPOSE OF
EXTORTING CONFESSION.-Although the allegation in the information that the physical injuries
suffered,by the offended party required seven days medical attendance with incapacity to work
for the same period only qualifies the,crime as slight physical injuries, which come under the
jurisdiction of the justice of the peace court and not of the court,of first instance, yet when the
same information likewise alleged that the malteratment was committed by the accused with
evident purpose of extorting confession from the offended party,that allegation amounts to grave
coercion which is within the'll,jurisdiction of the court of first instance, as it is punished:'under
article 286 of the Revised Penal Code with arresto,infavor and a fine not exceeding P500.
Inasmuch as the allegations in the information conferred jurisdiction on the court of,First
instance, the fact that the accused was convicted of a lesser crime included within those
allegatiorr did not deprive the court of its jurisdiction.
PETITION for review by certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Claro M. Recto and Ozaeta, Lichauco & Picazo for petitioner.
Solicitor 'General Ambrosio Padilla and Solicitor Jose P. Alejandro for respondent.
JUGO, J.:
We are asked to review on certiorari the decision of the Court of Appeals in these two cases,
which were decided together -by said Court, on the principal ground that the Court of First
Instance of Quezon Province which tried the case had no original jurisdiction and,
consequently,the Court of Appeals had no appellate jurisdiction over the crime charged.The
above two cases were commenced in the Court of First Instance of Quezon Province, Marcial
Punzalani being,the accused in both cases. In Case No. 11041, the offended party is Moises
Escueta, and in Case No. 11041, the complainant is Isidro Capino. The information in Case
No.11041 is of the same tenor as that in Case No. 11041, with the, difference as to the offended
party. Said information leads as follows:
"The undersigned, Provincial Fiscal, accuses Marcial Punzalan of the crime of maltreatment
with physical injuries, defined and punished under article 235 in connection with article 266 of
the Revised Penal Code, committed as follows:
"'That on or about the 14th day of November, 1951, in the Municipality of Tiaong, Province of
Quezon, Philippines, and within the jurisdiction of this Ron. Court, the said accused, being the
Municipal Mayor of said municipality, taking advantage of his official position as such, without
any justifiable motive, and with evident purpose of extorting confession from one Moises
Escueta, did then and there willfully, unlawfully and feloniously illtreat the latter,by then and
there assaulting, beating and striking theu abdomen, face,breast and arms with an Automatic
Pistol, caliber. .45 and his fist,while said Moises Escueta was kept in the Camp of the Phil.
Ground Force (PGF) located in the said municipality, thereby causing injuries in the different
parts of his body which required medical attendance for a period of seven (7) days,, and
incapacitated, the said offended party from performing his customary labor for the same period
of time".
After joint trial, the appellant was found guilty of slight physical injuries only, and sentenced to
suff er 30 days of arresto menor with the accessory penalties of the law, and to pay the
costs.During the trial, the defendant moved to quash the in formation on the ground that the
allegations contained therein do not constitute the crime of maltreatment of prisoners, and that
whatever offenses are charged therein do not fall within the jurisdiction of the trial court.The trial
court, in its decision, denied the motion to quash, but acquitted the appellant of maltreatment of
prisoners with physical injuries as defined and penalized in Article 235 in connection with Article
Page 4 of 8
266 of the Revised Penal Code, and convicted him of slight physical injuries under paragraph I
of Article 266 of said Code, sentencing him in each of the two cases to 30 days of arresto
men6r.
The defendant appealed to the Court of Appeals, which found him guilty of grave coercion, and,
compensating the aggravating circumstance of abuse of authority with the mitigating
circumstance of passion and obfuscation,sentenced him to suffer 2 months and 21 days of
arresto mayor to pay a fine of P150 with the corresponding subsidiary imprisonment in case of
insolvency and to, pay the costs.In this Court, the appellant contends that the Court of First
Instance had no jurisdiction over the crime alleged in the information, and, consequently, the
Court of Appeals had no appellate jurisdiction and asks for his acquittal with costs de oficio.The
question at issue is whether the court of first in stance had jurisdiction to take cognizance of the
case in view of the- allegations of the information.The first paragraph of the complaint accuses
the appellant of a violation of Article 235 in connection with Article 266 of the Revised Penal
Code. Under Article 235, it is necessary that the maltreated prisoner be under the charge of the
officer maltreating him. There is no such allegation in the information above quoted. The
prisoners, Moises .Esepeta and Tsidro Capino, according to the information,were simply 'kept in
the Camp of the Philippine Ground Force in the -municipality of Tiaong; but it is not alleged
therein that they were under the charge of Punzalan as Mayor of _Tiaong. Hence, one of the
essential elements of the offense under Article 235 was lacking. Had that allegation been made
in the information, the punishment being arresto mayor in its medium period to prision
correctional in its minimum period, the Court of First Instance of Quezon Province would have
had jurisdiction, and, consequently, the Court of Appeals, appellate jurisdiction.The allegation in
the information that the physical injuries, suffered by the offended party required seven days
medical attendance with incapacity to work for the same period only qualifies the crime as slight
physical injuries,which come under the jurisdiction of the justice of the peace court and not of
the court of first instance. However, the appellant overlook the allegation in the information that
the maltreatment was committed by the accused ,"with evident purpose of extorting confession"
from, the Offended party, while the latter was kept ' in the Camp of the Philippine Ground Force
in Tiaong. This allegation amounts to grave coercion, which is within the jurisdiction of the court
of first instance, as it is punished under Article 286 of the Revised Penal Code with arresto
mayor and a 'fine not exceeding P500.
The appellant claims that the coercion was not consummated but -frustrated only for the reason
that the offended party did not confess the crime attributed to him.This conclusion is contrary to
the doctrine laid down by this Court in U. S. vs. Cusi, 10 Phil., 413, which says:"Coercion-The
fact that an individual was maltreated for the purpose of compelling to confess a crime which
was attributed to him, constitute the crime of consummated coercion, even if the agents of the
authorities who carried out the maltreatment did not accomplish their purpose to draw from him
a confession, which it was their intention to obtain by the employment of such means".This
doctrine was reiterated in the case of U. S. vs.Pabalan, 37 Phil., 352, where it did not appear
that the offended party acceded to the purpose of the coercion. It is unnecessary to say that
inasmuch as the allegations in the information conferred jurisdiction on the court of first
instance, the fact that the accused was convicted of a lesser crime included within those
allegations did not deprive the court of its jurisdiction.
In view of the foregoing, the decision of the Court of Appeals is affirmed, with costs against the
petitioner. It is so ordered.
Bautista Angelo, Labrador, Concepcion, and Reyes, J. B. L.,
JJ., concur.
Decision affirmed.
Southern Motors, Inc. vs. Barbosa May 25, 1956
[GRN L-9306 May 25, 1956]
Page 5 of 8
SOUTHERN MOTORS, INC., plaintiff and appellee, vs. ELISEO BARBOSA, defendant and
appellant.
1. SURETY AND GUARANTY; RIGHT OF GUARANTORS; EXHAUSTION OF PRINCIPAL
DEBTOR'S PROPERTY.-The right of guarantors, under article 2058 of the Civil Code of the
Philippines, to demand exhaustion of the property of the principal debtor, exists only when a
pledge or a mortgage has not been given as special security for the payment of the principal
obligation. Guarantees, without any such pledge or mortgage, are governed by title XV of said
Code, whereas pledges and mortgages fall under title XVI thereof, in which articles 2,087 and
2126 of same code among others are found.Southern Motors, Inc. vs. Barbosa
2. ID.; ID.; ORDINARY PERSONAL GUARANTOR MAY DEMAND EXHATISTION; CREDITOR
MAY SECURE JUDGMENT AGAINST GUARANTOR PRIOR THERETO.-Although an ordinary
personal guarantor, not a mortgagor or pledgor, may demand exhaustion, the creditor may, prior
thereto, -secure a judgment against said guarantor,who shall be entitled, however, to a
deferment of the execution of said judgment against him, until after the properties of the
principal debtor shall have been exhausted, to satisfy the obligation involved in the case.
APPEAL from a judgment of the Court of First Instance of Iloilo. Makalintal, J.
The facts are stated in the opinion of the Court.
Diosdado Garingalao for appellee.
Juan V. Borra and Eduardo Gildoro for appellant.
CONCEPCION, J.:
This is an appeal from a decision of the Court of First'
Instance of Iloilo:
"(a) Ordering the defendant Eliseo Barbosa to pay to the Court,for the benefit of the plaintiff
within a period of ninety (90) days from receipt by the defendant hereof, the sum of P2,889.53,
with interest at the rate of 1201o per annum computed on the basis of the amounts of the
instalments mentioned in the mortgage and of the dates they respectively fell due, until fully
paid; the sum of P200 by way of attorney's fees, plus costs; and (b) Upon failure of the
defendant to pay as aforesaid, ordering the land described in the complaint and subject of the
mortgage to be sold at public auction in accordance with law in order to realize the amount of
the judgment debt and costs."
Although originally forwarded to the Court of Appeals,the same has certified the record to this
Court in view of the fact that the issues raised in the appeal involve merely questions of law.
Plaintiff, Southern Motors, Inc., brought this action against Eliseo Barbosa, to foreclose a real
estate mortgage,constituted by the latter in favor of the former, as security for the payment of
the sum of P2,889.53 due to said plaintiff from one Alfredo Brillantes, who had failed to settle his
obligation in accordance with the terms and conditions of the corresponding deed of mortgage.
Defendant Eliseo Barbosa filed an answer admitting the allegations of the complaint and
alleging, by way of "special and affirmative"defense:
"That the defendant herein has executed the deed of mortgage Annex A for the only purpose of
guaranteeing-as surety and/or guarantor-the payment of the above mentioned debt of Mr.
Alfredo Brillantes in favor of the plaintiff.
"That the plaintiff until now has no right action against the herein defendant on the ground that
said plaintiff, without motive whatsoever, did not intent or intents to exhaust all recourses to
collect from the true debtor Mr. Alfredo Brillantes the debt contracted by the latter in favor of said
plaintiff, and did not resort nor intends to resort all the legal remedies against the true debtor Mr.
Alfredo Brillantes, notwithstanding the fact that said Mr.Alfredo Brillantes is solvent and has
many properties within the Province of Iloilo."
Thereupon, plaintiff moved for summary judgment which a branch of the Court of First Instance
of Iloilo, presided over by Hon. Roman Ibafiez, Judge, denied upon the ground that it "is
premature". Plaintiff moved for a reconsideration of the order to this effect. Soon later, he filed,
Page 6 of 8
also,another motion praying that the case be transferred to another branch of said courtj
because that of Judge 1baez would be busy trying cadastral cases, and had adopted the
"policy of refraining from entertaining any other civil cases and all incidents related thereto, until
after said cadastral cases shall have been -finally disposed of."
With the express authority of Judge Ibaez, the case was referred to the branch of said court,
presided over by Hon. Querube C. Makalintal, Judge, for action, upon said motion for
reconsideration. , Thereafter, Judge Makalintal rendered the aforementioned decision, from
which the defendant has appealed. He maintains, in his brief,"The trial court erred in hearing
plaintiff-appellee's 'motion for reconsideration' dated June 9, 1951, notwithstanding the fact that
defendant-appellant was not served with a copy thereof nor served with notice of the hearing
thereof.
2. "The trial court erred in rendering a 'judgment on the pleadings' in appellee's favor when no
issue was at all submitted to it for resolution, to the prejudice of the substantial rights of
appellant._
3. "The court a quo erred in depriving defendant-appellant of his property rights without due
process of law."The first assignment of error is based upon an erron eous predicate, for,
contrary to defendant's assertion, his counsel in the lower court, Atty. Manuel F. Zamora,
through an employee of his office, by the name of Agripino Aguilar,was actually served on June
9, 1951, with copy of plaintiff's motion for reconsideration, with notice to the effect that said
motion would be submitted for the consideration and approval of the lower court, on Saturday,
June 16, 1951, at 8:00 a.m., or soon thereafter as counsel may be heard.
The second assignment of error is, likewise, untenable.It is not true that there was no issue
submitted for deter mination by the lower court when it rendered the decision appealed from.It
will be recalled that each one of the allegations made An plaintiff's complaint were expressly
admitted in defendant's answer, in which he merely alleged, as"'special and affirmative"
defense, that plaintiff is not entitled to foreclose the mortgage constituted in its favor by the
defendant, because the property of Alfredo Brillantes, the principal debtors, had not been
exhausted as yet, and were not sought to be exhausted, for the satisfaction of plaintiff's credit.
Thus, there was no question of fact left for determination. The only issue set up by the pleadings
was the sufficiency of said affirmative defense. And such was the only point discussed by the
defendant in his opposition to plaintiff's motion for a summary judgment,referring, evidently, to a
judgment on the pleadings.
Plaintiff's motion for reconsideration of the order of Judge Roman Ibaez refusing to render said
judgment,upon the ground that it- was premature, revived said issue of sufficiency of the
aforementioned affirmative defense,'a-Dart from calling for a reexamination of the question
posed by said order of Judge Ibafiez, namely, whether it was proper, under the circumstances,
to render a judgment on thel pleadings. In other words, said motion for reconsideration had the
effect of placing before then Judge Makalintal, for resolution, the following issues, to wit:
(1) whether a summary judgment or a judgment on the pleadings was in order, considering the
allegations of plaintiff's complaint and those of defendant's answer; and
(2) whether the mortgage in question could be foreclosed although plaintiff had not exhausted,
and did not intend to exhaust, the properties of his principal debtor, Alfredo Brillantes.
The third assignment of error is predicated upon the alleged lack of notice of the hearing of
plaintiff's motion for reconsideration. As stated in our discussion of the first assignment of error,
this pretense is refuted by the,record. T4oreover, it is obvious that defendant's affirmative
defense is devoid of merit for:
1. The deed of mortgage executed by him specifically provides:
That if said Mr. Alfredo Brillantes or herein mortgagor, his heirs, executors, administrators and
assigns shall well and trully perform the full obligations above-stated according to the terms
thereof, then this mortgage shall be null and void, otherwise it shall remain in full force and
Page 7 of 8
effect, in which event he Fein Mortgagor authorizes and empowers herein mortgagee-company
to take any of the following actions to enforce said payment;
"(a) Foreclose, judicially or extrajudicially, the chattel mortgage above referred to and/or also this
mortgage, applying the proceeds of the purchase price at public sale of the real property
herein.mortgaged to any deficiency or difference between the purchase'price of said chattel at
public auction and the amount of P2,889.53,together with its interest hereby secured; or 11(b)
Simply foreclose this mortgage judicially Jn , accordance with the provisions of section 2, Rule
70, Rules of Court, or extrajudicially under the provisions of Act No. 3135 and Act No. 4118,to
satisfy the full amount of P2,889.53, together with its interest of 12 per cent per annum."
2, The right of guarantors, under Article 2058 of the Civil Code of. the Philippines, to demand
exhaustion of the property of the principal debtor, exists only when a pledge or. a mortgage has
not been given as special security for the payment of the principal obligation.
Guarantees,without any such pledge or mortgage, are governed by Title XV of said Code,
whereas pledges and mortgages fall under Title XVI of the same Code, in which the following
provisions, among others, are found:
ART. 20,87. "It is also of the essence of these contracts that when the principal obligation
becomes due, the things in which the pledge ,or mortgage consists may be alienated for the
payment to the creditor."
ART. 2126. "The mortgage directly and immediately subjects the property upon which it is
imposed, whoever the possessor may be,to the fulfillment of the obligation for whose security it
was constituted."
3. It has been held already (Saavedra vs. Price, 68 Phil.,688), that a mortgagor is not entitled to
the exhaustion of the property of the principal debtor.
4. Although an ordinary personal guarantor-not a mortgagor or pledgor-may demand the
aforementioned exhaus tion, the creditor may, prior thereto, secure a judgment against said
guarantor, who shall be entitled, however, to a deferment of the execution of said judgment
against him until after the properties of the principal debtor shall have been exhausted to satisfy
the obligation involved in the case.
Wherefore, the decision appealed from is hereby affirmed, with costs against the defendant-
appellant. It Is so ordered.
Pards, C. J., Bengzon, Padilla, Montemayor, Reyes, A.,
Jugo, Bautista Angelo, Labrador, Reyes, J. B. L., and
Endencia, JJ., concur.
Judgment affirmed.

Page 8 of 8