G.R. No. 32154 , October 20, 1930
Ladislao Afable vs. Carmen Belando, with “La Urbana,” Mutual Building and Loan Association as Intervenor-Appellee

FACTS

Ladislao Afable filed an action against Carmen Belando for payment of a promissory note. During the proceedings, Afable obtained a preliminary attachment on Belando’s property, including rents from lands in Cavite. On January 18, 1929, Afable secured a judgment against Belando. Pursuant to a writ of execution, the attached rents were delivered to Afable on April 3, 1929.
Meanwhile, prior to Afable’s action, “La Urbana” had already filed a foreclosure suit against Belando on August 5, 1927, secured a judgment on January 14, 1928, and obtained an affirmation from the Supreme Court on March 27, 1929. The rents delivered to Afable were collected from the same property mortgaged to La Urbana. La Urbana intervened to recover these rents, leading the trial court to order the sheriff to return the rents to the depository bank appointed in La Urbana’s foreclosure case. Afable appealed.

ISSUE

Whether the rents from the mortgaged property could be validly attached by Afable in his ordinary action for collection of a sum of money, given the prior mortgage lien of La Urbana under Article 1877 of the Civil Code and Section 111 of the Mortgage Law.

RULING

No. The Supreme Court affirmed the trial court’s decision, holding that the rents were already included in La Urbana’s mortgage lien and could not be legally attached by Afable.
Under Article 1877 of the Civil Code and Sections 110 and 111 of the Mortgage Law, a mortgage includes all rents of the mortgaged property not collected when the obligation becomes due, and all rents payable until the credit is satisfied. Since La Urbana’s obligation had already fallen due when Afable attached the rents (La Urbana’s foreclosure judgment was rendered on January 14, 1928, and Afable’s attachment occurred on September 4, 1928), the rents were liable for La Urbana’s mortgage credit.
The Court rejected Afable’s arguments: (1) that La Urbana’s judgment did not expressly mention the rents, as the law automatically includes them; and (2) that La Urbana waived its right by not taking possession of the property and instead filing for foreclosure, as this did not constitute a waiver.
Thus, La Urbana’s mortgage lien had priority over Afable’s subsequent attachment.