GR L 1630; (July, 1949) (Digest)
G.R. No. L-1630; July 23, 1949
ANTONIO NARVAEZ, petitioner, vs. DIONISIO DE LEON, Judge of First Instance of Manila, LADISLAO PASICOLAN, Sheriff of Manila, and CENTRAL SURETY INSURANCE COMPANY, respondents.
FACTS
Petitioner Antonio Narvaez and Ramon P. Bernal were solidary co-makers of a promissory note for P3,000 in favor of respondent Central Surety Insurance Company. Bernal also executed a chattel mortgage on his personal properties to secure the debt. The company sued both for recovery and obtained a writ of attachment on the mortgaged properties. Before judgment, Bernal and the company entered into an extrajudicial agreement where Bernal voluntarily surrendered the same properties to the company to preserve or sell, with proceeds to be applied to any judgment. After a final judgment was rendered against both debtors, the company obtained a writ of execution against Narvaez’s properties alone. Narvaez moved to quash the writ, arguing that the company must first sell Bernal’s surrendered properties and apply the proceeds to the judgment before holding him liable for any unsatisfied balance. The motion was denied, prompting this petition for certiorari.
ISSUE
Whether the trial court acted with grave abuse of discretion in ordering execution against petitioner Narvaez’s properties without first requiring the sale of co-debtor Bernal’s properties, which were already in the creditor’s possession for that purpose.
RULING
The petition for certiorari is denied. The Court held that while a solidary creditor may proceed against any solidary debtor under Article 1144 of the Civil Code, a solidary debtor may raise defenses pertaining to the shares of co-debtors. Here, petitioner Narvaez could rightfully demand that Bernal’s surrendered properties be sold and the proceeds applied to Bernal’s share of the obligation before being held liable for the entire judgment. However, the trial court’s order of execution against Narvaez was not a grave abuse of discretion amounting to excess of jurisdiction, as it did not preclude Narvaez from later raising this defense against the application of the execution proceeds. The proper remedy for Narvaez, if the court later refuses to order the sale of Bernal’s properties and apply the proceeds, is to appeal that final order, not certiorari.
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