G.R. No. L-4140 and L-4141 December 29, 1951
BERNARDO S. DUÑGAO AND MARIA GERVACIO BLAS, petitioners, vs. ANGEL ROQUE, ALFONSO ROQUE and JUSTINA ROQUE, respondents.

FACTS

On September 23, 1941, Maria Gervacio Blas borrowed P3,000 from Alfonso Roque and P2,000 from Justina Roque, secured by a real estate mortgage on a parcel of land in Lubao, Pampanga. The loan was payable within five years with 10% annual interest. On December 21, 1943, Bernardo Duñgao, Maria’s husband, paid accrued interest at a reduced rate of 6% to Angel Roque, father of the creditors. In July 1944, the spouses’ attorney, Conrado S. Carlos, offered to pay the full indebtedness plus interest to Angel Roque in Macabebe, Pampanga. Angel Roque refused, stating he was not the mortgagee and that his children were in San Jacinto, Pangasinan. Unable to tender payment directly to the mortgagees, the attorney deposited the sum of P5,183.28 (principal and interest) with the Clerk of Court of San Fernando, Pampanga, on July 26, 1944. That same day, the spouses filed Civil Case No. 105 against Alfonso, Justina, and Angel Roque, seeking to compel acceptance of the consigned amount and release of the mortgage. On March 24, 1947, Alfonso and Justina Roque filed Civil Case No. 77 to foreclose the mortgage. The spouses moved to dismiss Case No. 77 due to the pendency of Case No. 105, but the motion was denied. The two cases were consolidated for trial. The trial court dismissed Civil Case No. 105 and ordered the spouses to pay the mortgage debt with 10% interest from September 23, 1941, plus attorney’s fees, or face foreclosure. The Court of Appeals affirmed this decision.

ISSUE

1. Whether the trial court erred in denying the motion to dismiss Civil Case No. 77 based on the pendency of Civil Case No. 105.
2. Whether the trial court erred in not declaring Angel Roque as the real mortgagee.
3. Whether the tender of payment to Angel Roque and subsequent consignation with the Clerk of Court constituted valid and sufficient redemption and payment of the mortgage debt.

RULING

1. No. The objection to the denial of the motion to dismiss was waived when the parties agreed to consolidate the two cases for joint trial and decision. Furthermore, the two actions were not identical, as a judgment in Civil Case No. 105 on the validity of the consignation would not automatically dispose of the foreclosure action in Civil Case No. 77.
2. No. The Court of Appeals’ finding that Alfonso Roque and Justina Roque were the true owners of the loaned money and the real mortgagees is conclusive and not subject to review.
3. No. The consignation was invalid and ineffective. Under Articles 1162, 1176, and 1177 of the Spanish Civil Code (then in force), payment must be made to the creditor or an authorized person. Since no tender was made to the creditors (Alfonso and Justina Roque), the consignation fell under the second paragraph of Article 1176 and Article 1177, which strictly require previous notice of the consignation to the persons interested in the obligation. The appellants admitted no such notice was given to the mortgagees. While the creditors were absent, their whereabouts (San Jacinto, Pangasinan) were known or easily ascertainable, and the debtors failed to exercise reasonable diligence to notify them. Moreover, even after consignation, subsequent notice must be given to the interested parties. The appellants failed to provide this second notice in time; summons in Civil Case No. 105 were served on Justina Roque only in July 1947 and never on Alfonso Roque (though he answered through counsel), by which time the deposited Japanese war notes had become worthless. The consignation, therefore, did not comply with legal requirements and did not release the debtors from their obligation. The decision of the Court of Appeals was affirmed.