G.R. No. 43234 ; November 27, 1935
PEDRO G. VASQUEZ, plaintiff-appellee, vs. AGUSTIN JOCSON and JOSE ARANETA, defendants-appellants.

FACTS

Plaintiff Pedro G. Vasquez sold Hacienda San Isidro to defendant Agustin Jocson for P100,000, with a mortgage on the property retained by Vasquez to secure the unpaid balance. The mortgage deed stipulated that the mortgage could be foreclosed if Jocson, without Vasquez’s written consent, constituted another mortgage on or leased the property. Jocson later executed a second mortgage on the hacienda in favor of co-defendant Jose Araneta and leased portions of it to third parties, all without Vasquez’s written consent. Vasquez filed an action for foreclosure. Jocson argued Vasquez had consented to these acts by his conduct, including delivering the title certificate to facilitate the notation of Araneta’s mortgage.

ISSUE

Whether the defendant mortgagor’s execution of a second mortgage and leases without the written consent of the plaintiff mortgagee constituted a violation of the mortgage contract justifying foreclosure.

RULING

Yes. The Supreme Court affirmed the foreclosure. The stipulation requiring the mortgagee’s written consent for any subsequent mortgage or lease is valid and binding. The mortgagee’s act of delivering the certificate of title to facilitate the notation of the second mortgage did not constitute a waiver of the written consent requirement or an estoppel. A waiver of a contractual right must be clear and unequivocal. The mortgagor’s violations (creating a second mortgage and executing leases without written consent) triggered the acceleration clause and the right to foreclose under the contract. The Court also addressed and rejected various counterclaims for credits and adjustments raised by the appellant.

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