GR 37648; (October, 1933) (Digest)
G.R. No. 37648; October 5, 1933
MARIA C. VIUDA DE ECHEGOYEN, plaintiff-appellee, vs. JUAN M. COLLANTES Y JAVIER, ET AL., defendants-appellants.
FACTS
Plaintiff, as administratrix of her deceased husband Rafael Echegoyen’s estate, filed an action to foreclose a real estate mortgage. The defendants had obtained a loan of P90,000 from Rafael Echegoyen, secured by a mortgage on two parcels of land. The mortgage contract stipulated 10% annual interest payable in advance, required insurance on the properties, and included a penalty clause for violation. Defendants defaulted on interest payments beginning October 15, 1931, and failed to pay the insurance premium, which plaintiff paid. Defendants argued in their answer that the foreclosure action was premature because the mortgage required default in interest payment for two consecutive months, and they claimed the interest fell due only on December 20, 1931. They also later contended, for the first time on appeal, that the mortgage was void because two minor defendants were not legally represented.
ISSUE
1. Whether the mortgage is null and void due to the alleged lack of legal representation of two minor defendants.
2. Whether the foreclosure action was prematurely filed.
RULING
1. On the validity of the mortgage: The Court found no merit in the claim. The issue was raised for the first time on appeal. Furthermore, the minors were represented by their brother and guardian, Juan M. Collantes, who signed for them. In the absence of contrary proof, it is presumed the guardian was duly appointed and authorized to execute the mortgage.
2. On the prematurity of the action: The Court held the action was timely. Under the mortgage terms, interest was payable in advance during the first five days of each month. The unpaid interest covered the period from October 15 to December 15, 1931. The complaint was filed on December 17, 1931, after the interest for two consecutive months had become due and remained unpaid, satisfying the contractual condition for default.
The trial court’s judgment was affirmed. The appeal was deemed frivolous, resulting in double costs against appellants.
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