AMIGO v.

TEVES

of the 18th-month period stipulated for the redemption of the land, the donees instituted
the present action.

DOCTRINE: Art. 1881. The agent must act within the scope of his authority. He may do
such acts as may be conducive to the accomplishment of the purpose of the agency.
Petitioners contend that the covenant of lease contained in said deed whereby the
vendors agreed to remain in possession of the land as lessees is not germane to power
FACTS: Macario Amigo and Anacleto Cagalitan (PETITIONERS) executed a power of of attorney and, therefore, Marcelino Amigo acted in excess of his powers as such
attorney granting to their son, Marcelino Amigo, among others, the power "to lease, let, attorney-in-fact.
bargain, transfer, convey and sell, remise, release, mortgage and hypothecate, part or
any of the properties . . . upon such terms and conditions, and under such covenants as
he shall think fit."
TC's DECISION: not detailed on case
CA's DECISION: Modified TC's decision, ruling in favor of respondent.
Marcelino Amigo, in his capacity as attorney-in-fact, executed a deed of sale of a parcel
of land in favor of Serafin Teves (RESPONDENT) stipulating that they could repurchase ISSUE: WON Marcelino Amigo acted in excess of his powers as attorney-in-fact.
the land within a period of 18 months from the date of the sale; That they would remain in
possession as lessees for a period of 18 months, paying rent every six months. That, in
case of failure to pay any rent, the lease shall automatically terminate and the right of RULING: The Court of Appeals, after analyzing the extent and scope of the powers
ownership of vendee shall become absolute.
granted to Marcelino Amigo in the power of Attorney executed in his favor by his
principals,
Macario Amigo and Anacleta Cagalitan donated to their sons Justino Amigo and Pastor
Amigo several parcels of land including their right to repurchase the land in litigation.
We find no plausible reason to disturb the findings of the Court of Appeals who found that
the powers under Marcelino's power of attorney are broad enough to justify the execution
of any contract concerning the lands covered by the authority even if this be a contract of
The vendors-lessees paid the rental corresponding to the first six months, but not the lease. The court even went further: even in the supposition that the power to take the
rental for the subsequent semester, thus RESPONDENT executed an "Affidavit of land under lease is not included within the authority granted, petitioners cannot now
Consolidation of Title" and registered said affidavit in the Office of the Register of Deeds impugn the validity of the lease covenant because such right devolves upon the
who issued to RESPONDENT the corresponding transfer of title over the land in principals, who are the only one who can claim that their agent has exceeded the
question.
authority granted to him, and because said principals had tacitly ratified the act done by
said agent.
Justino Amigo and Pastor Amigo, as donees of the right to repurchase the land in
question, offered to repurchase the land from Serafin Teves by tendering to him the The same, in our opinion, is in consonance with the evidence presented and with the
payment of the redemption price but the latter refused on the ground that the ownership conclusions that should be drawn from said evidence. This can be shown from a mere
had already been consolidated in him as purchaser a retro. Hence, before the expiration examination of the power of attorney. A cursory reading thereof would at once reveal

that the power granted to the agent is so broad that it practically covers the celebration of
PNB opened a letter of credit and advanced $120,000 to Edgington Oil
any contract and the conclusion of any covenant or stipulation. Thus, among the powers Refinery for 8,000 tons of hot asphalt. Of this amount, 2,000 tons worth P279,000 were
granted are: to bargain, contract, agree for, purchase, receive, and keep lands, released and delivered to Adams & Taguba Corporation (ATACO) under a trust receipt
tenements, hereditaments, and accept the seizing and possessing of all lands," or "to guaranteed by Manila Surety & Fidelity Co. up to the amount of P75,000. To pay for the
lease, let, bargain, transfer, convey and sell, remise, release, mortgage and asphalt, ATACO constituted PNB its assignee and attorney-in-fact to receive and collect
hypothecate . . . upon such terms and conditions, and under such covenants as he shall from the Bureau of Public Works the said amount out of funds payable to the assignor.
think fit." (Emphasis supplied). When the power of attorney says that the agent can enter Such assignment stipulated that the power of attorney shall remain irrevocable until
into any contract concerning the land, or can sell the land under any term or condition ATACOs total indebtedness to the said Bank have been fully liquidated.
and covenant he may think fit, it undoubtedly means that he can act in the same manner
ATACO delivered asphalt to the Bureau of Public Works, and the latter
and with the same breath and latitude as the principal could concerning the property. The accepted. Of the total value of P431,466.52, PNB regularly collected. Thereafter,
fact that the agent has acted in accordance with the wish of his principals can be inferred however, for unexplained reasons, the Bank ceased to collect from the Bureau. It was
from their attitude in donating to the herein petitioners the right to redeem the land under later found that more was payable to ATACO, but the bank allowed other creditors to
the terms and conditions appearing in the deed of sale executed by their agent.
collect the funds due to ATACO.
Its demands on the principal debtor and the Surety having been refused, PNB
sued both in the CFI of Manila to recover the balance, plus interests and costs.
On the other hand, we find nothing unusual in the lease covenant embodied in the deed TC:
CFI ordered the defendants, Adams & Taguba Corporation and Manila Surety &
of sale for such is common in contracts involving sales of land with pacto de retro. The
Fidelity
Co.,
Inc., to pay PNB the sum of P174,462.34 provided that the total amount that
lease that a vendor executes on the property may be considered as a means of delivery
should
be
paid
by Manila Surety Co., Inc., shall not exceed P75,000.00.
or tradition by constitutum possessorium. Where the vendor a retrocontinues to occupy
CA:
the land as lessee, by fiction of law, the possession is deemed to be constituted in the
Rendered an adverse decision and modified the judgment of the court of origin
vendee by virtue of this mode of tradition (10 Manresa, 4th ed. p.124). We may say
therefore that this covenant regarding the lease of the land sold is germane to the as to the surety's liability. It dismissed PNB's complaint against Manila Surety & Fidelity
Co., Inc.
contract of sale with pacto de retro.
The CA found the Bank to have been negligent in having stopped collecting
from the Bureau of Public Works the money due in favor of the principal debtor, ATACO,
Finding no error in the decision appealed from, the same is hereby affirmed, without before the debt was fully collected, thereby allowing such funds to be taken and
exhausted by other creditors to the prejudice of the surety. It also held that the Bank's
pronouncement as to costs.
negligence resulted in exoneration of Manila Surety & Fidelity Company.
This holding is now assailed by PNB. It contends that the power of attorney
obtained
from
ATACO was merely an additional security in its favor, and that it was the
PNB v. Manila Surety, 122 Phil 106; 14 SCRA 776 (1965) DORIA
duty of the surety, and not that of the creditor, to see to it that the obligor fulfills his
obligation, and that the creditor owed the surety no duty of active diligence to collect any,
DOCTRINE:
An agent is required to act with the care of a good father of a family (Art. 1887) sum from the principal debtor.
and becomes liable for the damages which the principal may suffer through his non- ISSUE:
W/N PNB was negligent in failing to collect from the Bureau of Public Works
performance (Art. 1884).
the
amount
due in favor of ATACO?
FACTS:
SC: YES

The CA did not hold the Bank answerable for negligence in failing to collect
An agent is required to act with the care of a good father of a family and
from the principal debtor but for its neglect in collecting the sums due to the debtor from becomes liable for the damages which the principal may suffer through his nonthe Bureau of Public Works, contrary to its duty as holder of an exclusive and irrevocable performance.
power of attorney to make such collections, since an agent is required to act with the FACTS:
care of a good father of a family (Art. 1887) and becomes liable for the damages which
The Philippine National Bank had opened a letter of credit and advanced
the principal may suffer through his non-performance (Art. 1884). It must not be forgotten thereon $120,000.00 to Edgington Oil Refinery for 8,000 tons of hot asphalt. Of this
that the Bank's power to collect was expressly made irrevocable, so that the Bureau ofamount, 2,000 tons worth P279, 000.00 were released and delivered to Adams & Taguba
Public Works could very well refuse to make payments to the principal debtor itself, and a Corporation (known as ATACO) under a trust receipt guaranteed by Manila Surety &
fortiori reject any demands by the surety.
Fidelity Co. up to the amount of P75,000.00.. To pay for the asphalt, ATACO constituted
Even if the assignment with power of attorney from the principal debtor were considered the Bank its assignee and attorney-in-fact to receive and collect from the Bureau of
as mere additional security, still, by allowing the assigned funds to be exhausted without Public Works the amount aforesaid out of funds payable to the assignor under Purchase
notifying the surety, the Bank deprived the former of any possibility of recourse against Order No. 71947.
that security. The Bank thereby exonerated the surety, pursuant to Article 2080 of the
PNB was negligent in its duty under the power of attorney to collect sums due
Civil Code.
to debtor from the latters debtor, thereby allowing such funds to be exhausted by other
The appellant points out to its letter of demand, addressed to the Bureau of creditors.
Public Works, and its letter to ATACO, informing the debtor that as of its date, October TC:
31, 1949, its outstanding balance was P156,374.83. Said letter has no bearing on the
The Court ordered defendants, Adams & Taguba Corporation and Manila
issue whether the Bank has exercised due diligence in collecting from the Bureau of Surety & Fidelity Co., Inc., to pay plaintiff, Philippines National Bank, the sum of
Public Works, since the letter was addressed to ATACO, and the funds were to come P174,462.34 as of February 24, 1956, minus the amount of P8,000 which defendant,
from elsewhere. As to the letter of demand on the Public Works office, it does not appear Manila Surety Co., Inc. paid from March, 1956 to October, 1956 with interest at the rate
that any reply thereto was made; nor that the demand was pressed, nor that the debtor of 5% per annum from February 25, 1956, until fully paid provided that the total amount
or the surety were ever apprised that payment was not being made. The fact remains that should be paid by defendant Manila Surety Co., Inc., on account of this case shall
that because of the Bank's inactivity the other creditors were enabled to collect not exceed P75,000.00, and to pay the costs;
P173,870.31, when the balance due to appellant Bank was only P158,563.18. The CA:
finding of negligence made by the Court of Appeals is thus not only conclusive on us but
Court of Appeals rendered an adverse decision and modified the judgment of
fully supported by the evidence.
the court of origin as to the surety's liability.
Even if the Court of Appeals erred on the second reason it advanced in support
The Court of Appeals found the Bank to have been negligent in having stopped
of the decision now under appeal because the rules on application of payments, giving collecting from the Bureau of Public Works the moneys falling due in favor of the principal
preference to secured obligations are only operative in cases where there are several debtor, ATACO, before the debt was fully collected, thereby allowing such funds to be
distinct debts, and not where there is only one that is partially secured the error is of no taken and exhausted by other creditors to the prejudice of the surety, and held that the
importance, since the principal reason based on the Bank's negligence furnishes Bank's negligence resulted in exoneration of respondent Manila Surety & Fidelity
adequate support to the decision of the Court of Appeals that the surety was thereby Company.
released.
ISSUE:
Art. 1887 - Agent Should Carry Out Agency In Accordance with Instructions of the
Principal
Whether or not the power of attorney obtained from ATACO was merely in
additional security in its favor, and that it was the duty of the surety, and not that of the
DOCTRINE:

creditor, owed see to it that the obligor fulfills his obligation, and that the creditor owed
the surety no duty of active diligence to collect any, sum from the principal debtor?
SC:
De Borja v. De Borja, 58 Phil 811 (1933) GATCHALIAN
CA Decision affirmed.
This argument of appellant Bank misses the point. The Court of Appeals did not DOCTRINE: There being no evidence showing that the agent converted the money
hold the Bank answerable for negligence in failing to collect from the principal debtor but entrusted to him to his own use, he is not liable for interest thereon
for its neglect in collecting the sums due to the debtor from the Bureau of Public Works,
contrary to its duty as holder of an exclusive and irrevocable power of attorney to make
such collections, since an agent is required to act with the care of a good father of a FACTS:
family (Civ. Code, Art. 1887) and becomes liable for the damages which the principal may The plaintiff herein, in his capacity as judicial administrator of the estate of the deceased
suffer through his non-performance (Civ. Code, Art. 1884). Certainly, the Bank could not Marcelo de Borja, instituted this action to recover from the defendant the sum of
expect that the Bank would diligently perform its duty under its power of attorney, but P61,376.56 which the defendant owed the aforesaid deceased, for the certain sums of
because they could not have collected from the Bureau even if they had attempted to do money loaned to and collected by him from other persons with the obligation to render an
so. It must not be forgotten that the Bank's power to collect was expressly made accounting thereof to the said deceased. The defendant filed several counterclaims.
irrevocable, so that the Bureau of Public Works could very well refuse to make payments
to the principal debtor itself, and a fortiori reject any demands by the surety.
Even if the assignment with power of attorney from the principal debtor were TC: The trial court reached the conclusion and held that, from his various causes of
considered as mere additional security still, by allowing the assigned funds to be action, the plaintiff was entitled to recover the sum of P33,218.86 from the defendant,
exhausted without notifying the surety, the Bank deprived the former of any possibility of and that, by way of counterclaim, the said defendant in turn was entitled to collect the
recoursing against that security. The Bank thereby exonerated the surety, pursuant to sum of P39,683 from the plaintiff, and rendered judgment in favor of the defendant in the
Article 2080 of the Civil Code:
sum of P6,464.14 with legal interest thereon from the date of the counterclaim, with the
ART. 2080. The guarantors, even though they be solidary, are released from costs. Both parties appealed therefrom
their obligation whenever by come act of the creditor they cannot be subrogated to the
rights, mortgages and preferences of the latter. (Emphasis supplied.)
The appellant points out to its letter of demand, Exhibit "K", addressed to the
Bureau of Public Works, on May 5, 1949, and its letter to ATACO, Exhibit "G", informing CA: N/A
the debtor that as of its date, October 31, 1949, its outstanding balance was
P156,374.83. Said Exhibit "G" has no bearing on the issue whether the Bank has
exercised due diligence in collecting from the Bureau of Public Works, since the letter ISSUE: WON the plaintiff is entitled to the interest claimed by him upon the alleged sums
was addressed to ATACO, and the funds were to come from elsewhere. As to the letter of loaned to and collected by the defendant from various persons for his deceased father
demand on the Public Works office, it does not appear that any reply thereto was made;
nor that the demand was pressed, nor that the debtor or the surety were ever apprised
that payment was not being made. The fact remains that because of the Bank's inactivity HELD: NO
the other creditors were enabled to collect P173,870.31, when the balance due to The plaintiff is not entitled to the interest claimed by him upon the alleged sums loaned to
appellant Bank was only P158,563.18. The finding of negligence made by the Court of and collected by the defendant from various persons for his deceased father. In all the
Appeals is thus not only conclusive on us but fully supported by the evidence
aforementioned transactions, the defendant acted in his capacity as attorney-in-fact of
his deceased father, and there being no evidence showing that he converted the money

entrusted to him to his own use, he is not liable for interest thereon, in accordance with
the provisions of article 1742 of the Civil Code.
Facts: Gabriela, having the consent and permission of her husband,and he acting as her
agent, made to BPI a promissory note for P292,000, payable one year after date with 9%
per annum interest payable monthly. Also, it was provided that in event of a suit or action,
the defendants should pay the further sum of P10,000 as attorneys fees.
To secure the payment of the note, which is joint and several, defendants Jean M. Poizat
and J. M. Poizat and Co. executed a chattel mortgage to the plaintiff on the steamers
Roger Poizat and Gabrielle Poizat, with the machinery and materials belonging to the
Poizat Vegetable Oil Mills and certain merchandise. At the same time, defendant
Gabriela, having the consent and permission of her husband and he acting as her agent,
they acknowledged and delivered to BPI a mortgage on a certain real property situated in
Manila specifically described in the mortgage. Since the real property was already
subject to a prior mortgage in favor of the religious corporation, they were made
defendants in this suit.

Art. 1900 Agents Written Power of Attorney, insofar as Concerns 3 rd Persons,

Governs On Questions Whether Agent Acted Within Scope of Authority Even If it
Exceeds Authority According to Understanding Between Principal and Agent
The note is long past due and owing. BPI brought an action to the CFI for the sheriff of
Bank of PI v. De Coster, 47 Phil 594 (1925) LESAVA

the City of Manila to take immediate possession of the property described in the chattel
mortgage and sell the same according to the Chattel Mortgage Law.

Doctrine: The fact that an agent failed and neglected to perform his duties and to
represent the interests of his principal is not a bar to the principal obtaining legal relief for
the negligence of her agent, provided that the application for such a relief is duly and The religious corporation is requesting for payment of the mortgage Jean Poizat and
Gabriela de Coster y Roxas amounting to P125,000 with 10% per annum.
properly made under the provisions of section 113.
CFI : BPI take possession of property, and that the Dominican Fathers should have
Parties:
judgment for the amount of their claim, and that the property should be sold and the
Plaintiff: BPI
proceeds applied to satisfy the respective judgments.
Defendants:
Gabriela Andrea de Coster y Roxas - wife of defendant Jean M. Poizat
J.M. Poizat and Co. - duly registered partnership
Gabriellas side:
La Orden de Dominicos/PP. Predicadores de la Provincia del Santisimo
She is the legitimate wife of Jean Poizat;
Rosario - religious corporation
She had been in Paris from 1908 to April 1924;

At the time of the filing of the complaint and issuance of the summons, she was of power of her husband to execute it. The same thing is true as to the real mortgage to
the bank.
absent from the Philippines;
She had no knowledge of the summons and that such was delivered to her
husband who was negligent such that a judgment was rendered. Furthermore,
she has not been able to talk to his husband from the time she got to manila It is admitted that on December 29, 1921, the defendant husband signed the name of the
defendant wife to the promissory note in question, and that to secure the payment of the
and even when she tried to look for him.
That she has a good and legal defense to the action, which involves the validity note, upon the same date and as attorney in fact for his wife, the husband signed the real
of the order of the Dominican Fathers in this, that their mortgage does not mortgage in question in favor of the bank, and that the mortgage was duly executed.
guarantee any loan made to this defendant; that it is a security only given for a
credit of a third person; that the mortgage was executed without the marital
consent of the wife; and that he did not have nay authority to make her liable Based upon such admissions, the bank vigorously contends that the defendant wife has
as surety on the debt of a third person.
not shown a meritorious defense. In fact that it appears from her own showing that she
does not have a legal defense. It must be admitted that upon the face of the instruments,
With regard to the notes to BPI:
o it is exclusively the personal debt of the defendants Jean M. Poizat that fact appears to be true. To meet that contention, the defendant wife points out, first,
that the note in question is a joint and several note, and, second, that it appears from the
and J.M. Poizat & Co.,
o that it was executed by her husband, because the bank desired more evidence, which she submitted, that she is nothing more than an accommodation maker
of the note. She also submits evidence which tends to show:
security for the payment of her husband's debt to the bank;
o that it was executed by her husband in excess of the powers given to
him under his power of attorney;
o that it was executed as the result of collusion between the bank and First. That prior to July 25, 1921, Jean M. Poizat was personally indebted to the Bank of
the Philippine Islands in the sum of P290,050.02 (Exhibit H, page 66, bill of exceptions);
the defendant liable for the obligation of a third person.
As to the mortgage:
o it was executed without the express marital consent which the law
Second. That on July 25, 1921, the personal indebtedness of Jean M. Poizat was
requires
converted into six promissory notes aggregating the sum of P308,458.58 of which
P16,180 were paid, leaving an outstanding balance of P292,278.58 (Exhibits D, E, F, G,
H and I, pages 75-80, bill of exceptions);
CA: not mentioned

Issue: WON the husband (J.M. Poizat) acted within his authority as his wifes agent?

Held: NO. The husband was not authorized or empowered to sign the note in question for
and on behalf of the wife as her act and deed, and that as to her the note is void for want

Third. That on December 29, 1921, the above promissory notes were cancelled and
substituted by a joint and several note signed by Jean M. Poizat in his personal capacity
and as agent of Gabriela Andrea de Coster y Roxas and as member of the firm J.M.
Poizat and Co.

In other words, that under the power of attorney, the husband had no authority for and on
behalf of the wife to execute a joint and several note or to make her liable as an
accommodation maker. That the debt in question was a preexisting debt of her husband Paragraph 5 of the power of attorney above quoted authorizes the husband for in the
and of the firm of J.M. Poizat and Co., to which she was not a party, and for which she name of his wife to "loan or borrow any sums of money or fungible things, etc." This
was under no legal obligation to pay. That she never borrowed any money from the bank, should be construed to mean that the husband had power only to loan his wife's money
and that previous to the signing of the note, she never had any dealings with the bank and to borrow money for or on account of his wife as her agent and attorney in fact. That
and was not indebted to the bank in any amount. That the old, original debts of her does not carry with it or imply that he had the legal right to make his wife liable as a
husband and J.M. Poizat and Co. to the bank, to which she was not a party, were all surety for the preexisting debt of a third person.
taken up and merged in the new note of December 29, 1921, in question, and that at the
time the note was signed, she did not borrow any money, and that no money was loaned
by the bank to the makers of the note.
Paragraph 6 authorizes him to "enter into any kind of contracts whether civil or
mercantile, giving due form thereof either by private documents or public deeds, etc."
Assuming such facts to be true, it would be a valid defense by the defendant wife to the
payment of the note. There is no claim or pretense that the bank was misled or deceived. Paragraph 7 authorizes him to "draw, endorse, accept, issue and negotiate any drafts,
If it had made an actual loan of P292,000 at the time the note was executed, another and bills of exchange, letters of credit, letters of payment, bills, vales, promissory notes, etc."
a different question would be presented. In the ordinary course of its business, the bank
knew that not a dollar was loaned or borrowed on the strength of the note. It was given at
the urgent and pressing demand of the bank to obtain security for the six different notes
which it held against J.M. Poizat and Co. and Jean M. Poizat of date July 25, 1921, The foregoing are the clauses in the power of attorney upon which the bank relies for the
aggregating about P292,000, and at the time it was given, those notes were taken up authority of the husband to execute promissory notes for and on behalf of his wife and as
and merged in the note of December 29, 1921, now in question. Upon the record before her agent.
us, there is no evidence that the defendant wife was a party to the notes of July 25, 1921,
or that she was under any legal liability to pay them.
It will be noted that there is no provision in either of them which authorizes or empowers
him to sign anything or to do anything which would make his wife liable as a surety for a
The note and mortgage in question show upon their face that at the time they were preexisting debt.
executed, the husband was attorney in fact for the defendant wife, and the bank knew or
should have known the nature and extent of his authority and the limitations upon his
It is fundamental rule of construction that where in an instrument powers and duties are
power.
specified and defined, that all of such powers and duties are limited and confined to
those which are specified and defined, and that all other powers and duties are excluded.
You will search the terms and provisions of the power of attorney in vain to find any
authority for the husband to make his wife liable as a surety for the payment of the
Paragraph 8 of the power of attorney authorizes the husband to institute, prosecute and
preexisting debt of a third person.
defend all actions or proceedings in a court of justice, including "accepting notices and
summons."

evidence or admissions on the part of her attorney that she was liable for the bank's
claim. It now contends that as a result of such negotiations and admissions, the wife is
There is nothing in the record tending to show that the husband accepted the service of estopped to deny her liability. but it also appears that during such negotiations, both the
any notice or summons in the action on behalf of the bank, and even so, if he had, it wife and her attorney did not have any knowledge of the actual facts, and that she was
would not be a defense to open up and vacate a judgment under section 113 of the Code then ignorant of the defense upon which she now relies. Be that as it may, such
negotiations were more or less in the nature of a compromise which was rejected by the
of Civil Procedure. The same thing is true as to paragraph 9 of the power of attorney.
bank, and it appears that in any event both the wife and her attorney did not have any
knowledge of the facts upon which they now rely as a defense.
The fact that an agent failed and neglected to perform his duties and to represent the
interests of his principal is not a bar to the principal obtaining legal relief for the
negligence of her agent, provided that the application for such a relief is duly and There is no claim or pretense that the debt in question was contracted for or on account
of the "usual daily expenses of the family, incurred by the wife or by her order, with the
properly made under the provisions of section 113.
tacit consent of the husband," as provided for in article 1362 of the Civil Code. Neither is
there any evidence tending to show that the wife was legally liable for any portion of the
It is very apparent from the face of the instrument that the whole purpose and intent of original debt evidence by the note in question.
the power of attorney was to empower and authorize the husband to look after and
protect the interests of the wife and for her and in her name to transact any and all of her
business. But nowhere does it provide or authorize him to make her liable as a surety for This decision as to the bank on this motion is based on the assumption that the facts are
true as set forth and alleged in the petition to set aside and vacate the judgment as to the
the payment of the preexisting debt of a third person.
wife, but we are not making any finding as to the actual truth of such facts. That remains
for the defendant wife to prove such alleged facts when the case is tried on its merits.
Hence, it follows that the husband was not authorized or empowered to sign the note in
question for and on behalf of the wife as her act and deed, and that as to her the note is
It follows that the opinion of the lower court in refusing to set aside and vacate the
void for want of power of her husband to execute it.
judgment of the plaintiff bank against the defendant wife is reversed, and that judgment is
vacated and set aside, and as to the bank the case is remanded to the lower court, with
The same thing is true as to the real mortgage to the bank. It was given to secure the leave for the wife to file an answer to plaintiff's cause of action, and to have the case tried
note in question and was not given for any other purpose. The real property described in on its merits and for any further proceedings not inconsistent with this opinion.
the mortgage to the bank was and is the property of the wife. The note being void as to
her, it follows that as to her the real mortgage to the bank is also void for want of power
As to the judgment in favor of the Dominican Fathers, it appears that their plea above
to execute it.
quoted in the statement of facts was filed on April 24, 1924. In that plea they say that
they have a first mortgage on the property described in paragraph IV of the complaint for
It appears that before the motion in question was filed, there were certain negotiations P125,000 with interest at 10 per cent per annum. That the mortgagors Jean M. Poizat
between the bank and the attorney for the wife with a view of a compromise or settlement and Gabriela Andrea de Coster y Roxas have not paid the principal or the stipulated
of the bank's claim against her, and that during such negotiations, there was some interest from December 16, 1921, to date, which up to the 30th day of April, 1924,

amounts to P27,925.34. Wherefore, it is prayed that the credit above-mentioned be taken From what has been said, it follows that, if the transaction between the Dominican
into account when the second mortgage is foreclosed.
Fathers and Jean M. Poizat as attorney in fact for his wife was an original one and the
P125,000 was actually loaned at the time the note and mortgage were executed and the
money was in good faith delivered to the husband as the agent and attorney in fact of the
No other plea of any kind, nature or description was filed by it. The record shows that a wife, it would then be a valid exercise of the power given to the husband, regardless of
copy of this alleged plea was served upon the attorneys for the plaintiff bank. There is the question as to what he may have done with the money.
nothing in the record which shows or tends to show that a copy of it was ever served on
either one of the defendants. Neither is there any evidence that either of the defendants
ever appeared in the original action. In fact, judgment was rendered against them by Paragraph 5 of the power of attorney specifically authorizes him to borrow money for and
default.
on account of his wife and her name, "and making all these transactions with or without
mortgages, pledges or personal guaranty."
Under such a state of facts, the judgment in favor of the Dominican Fathers cannot be
sustained. In the first place, the plea above quoted filed on April 24, 1924, would not be It follows that the judgment of the lower court in favor of La Orden de Dominicos or PP.
sufficient to sustain a judgment. It does not even ask for a judgment of the foreclosure of Predicadores de la Provincia del Santisimo Rosario is reversed, without prejudice to its
its mortgage. In the second place, no copy of the plea was ever served upon either of the right to either file an original suit to foreclose its mortgage or to file a good and sufficient
defendants, who were the real parties in interest, and against whom a judgment was plea as intervenor in the instant suit, setting forth the facts upon which it relies for a
rendered for the full amount of the note and the foreclosure of the mortgage. Such a judgment on its note and the foreclosure of its mortgage, copies of which should be
proceeding cannot be sustained on any legal principle.
served upon the defendants.

Unless waived, a defendant has a legal right to service of process, to his day in court and
to be heard in his defense.