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Arroyo vs. Jungsay

1) The plaintiff is the court-appointed guardian of an imbecile, suing the imbecile's former guardian and that guardian's bondsmen. 2) The former guardian absconded with the imbecile's funds. The plaintiff sued and obtained a judgment against the former guardian and bondsmen for P6,000 plus interest and costs. 3) The bondsmen appealed, seeking a P4,400 credit for property attached as belonging to the former guardian. However, the court found the property was not readily saleable, was encumbered, and was claimed in full by third parties, so the bondsmen failed to meet the legal requirements to obtain the credit.

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134 views2 pages

Arroyo vs. Jungsay

1) The plaintiff is the court-appointed guardian of an imbecile, suing the imbecile's former guardian and that guardian's bondsmen. 2) The former guardian absconded with the imbecile's funds. The plaintiff sued and obtained a judgment against the former guardian and bondsmen for P6,000 plus interest and costs. 3) The bondsmen appealed, seeking a P4,400 credit for property attached as belonging to the former guardian. However, the court found the property was not readily saleable, was encumbered, and was claimed in full by third parties, so the bondsmen failed to meet the legal requirements to obtain the credit.

Uploaded by

Sherily Cua
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10168

July 22, 1916

JOSE M. A. ARROYO, guardian of Tito Jocsing, an imbecile, plaintiff-appellee,


vs.
FLORENTINO HILARIO JUNGSAY, ET AL., defendants-appellants.
Perfecto J. Salas Rodriguez for appellants.
TRENT, J.:
The plaintiff in this case is the guardian of one Tito Jocsing, an imbecile, appointed by the court to
succeed Jungsay, the former guardian, who absconded with the funds of his ward. The defendants
are the absconding guardian and his bondsmen. From a judgment in favor of the plaintiff and against
the defendants for the sum of P6,000, together with interest and costs, the bondsmen appealed.
The principal question presented for our consideration is whether the appellants should be credited
with P4,400, the alleged value of certain property attached as that of the absconding guardian, all of
which is in the exclusive possession of third parties under claim of ownership.
The appellants in contending for the credit, rely upon article 1834 of the Civil Code, which gives to
the surety the benefit of a levy (excusion), even when a judgment is rendered against both the surety
and the principal. But, according to article 1832, before the surety is entitled to this benefit, he must
point out to the creditor property of the principal debtor which can be sold and which is sufficient to
cover the amount of the debt. Upon this point Manresa, in vol. 12, pp. 263-265, says:
As explicitly stated in the article under consideration, it is not sufficient that the surety claim
the benefit of discussion in time, nor that is so doing he designate property of the debtor
wherein to satisfy the debt. It is also necessary that another condition be fulfilled, to wit, that
such property be realizable and that it be situated in Spanish territory. This is not only logical,
but just, because the attachment of property situated a great distance away would be a
lengthy and extremely difficult proceeding and one that, if actually not opposed to, yet does
not very well accord with the purpose of the bond, that is, to insure the fulfillment of the
obligation and at the same time furnish the creditor with the means of obtaining its fulfillment
without hindrance or delays. The same may be said of property that is not readily realizable,
and as the surety is the sole person who benefits by the discussion and the one most
interested in avoiding difficulties in its execution, it is he, therefore, who should designate the
property out of which the recovery is to be made, it being unquestionably convenient for him
that the property he designates unite the conditions indicated in order to facilitate the
payment of the debt, whereby he will be freed from the subsidiary obligation inherent in the
bond.
In Hill & Co. vs. Bourcier and Pond (29 La. Ann., 841), where provisions similar to our Civil Code
were under consideration, the court said:

The surety has the right, under certain circumstances, to demand the discussion of the
property of the principal debtor. Where suit is brought against the surety alone, he may
interpose the plea, and compel the creditor to discuss the principal debtor. The effect of this
is to stay proceedings against the surety until judgment has been obtained against the
principal debtor, and execution against his property has proved insufficient. When the suit is
brought against the surety and the principal debtor the plea of discussion does not require or
authorize any suspension of the proceedings; but the judgment will be so modified as to
require the creditor to proceed by execution against the property of the principal, and to
exhaust it before resorting to the property of the surety. (Bernard vs. Custis, 4 Martin, 215;
Banks vs. Brander, 13 La., 276.)
In either case, the surety who desires to avail himself of this right must demand it in limine,
`on the institution of proceedings against him.' He must, moreover, point out to the creditor
property of the principal debtor, not incumbered, subject to seizure; and must furnish a
sufficient sum to have the discussion carried into effect. (R. C. C., 3045, 3046, 3047.) A plea
which does not meet these requirements must be disregarded. (Robechot vs. Folse, 11 La.,
136; Banks vs. Brander, 13 La., 276.)
The property pointed out by the sureties is not sufficient to pay the indebtedness; it is not salable; it
is so incumbered that third parties have, as we have indicated, full possession under claim of
ownership without leaving to the absconding guardian a fractional or reversionary interest without
determining first whether the claim of one or more of the occupants is well founded. In all these
respects the sureties have failed to meet the requirements of article 1832 of the Civil Code.
Where a guardian absconds or is beyond the jurisdiction of the court, the proper method, under
article 1834 of the Civil Code and section 577 of the Code of Civil Procedure, in order to ascertain
whether such guardian is liable and to what extent, in order to bind the sureties on his official bond,
is by a proceeding in the nature of a civil action wherein the sureties are made parties and given an
opportunity to be heard. All this was done in the instant case.
The judgment appealed from, being in accordance with the law, the same is hereby affirmed, with
costs against the appellants. So ordered.
Torres, Johnson, Moreland, and Araullo, JJ., concur.

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