50. Bachrach Motor Co., Inc. vs. Icarangal 1. 4.ID.; ID.; ID.

; RULE AGAINST SPLITTING A SINGLE

CAUSE OF ACTION.—Even if section 708 of the Code of
[No. 45350. May 29, 1939] Civil Procedure, or section 59 of the Insolvency Law were
BACHRACH MOTOR Co., INC., plaintiff and appellant, vs. EsTEBAN not in the statute books, there is still the rule against
ICARANGAL and ORIENTAL COMMERCIAL Co., INC., defendants and splitting a single cause of action. This rule, .though not
appellees. contained in any statutory provision, has been applied by
this court in all appropriate cases. The rule against splitting
1. 1.REAL AND PERSONAL ACTION; FORECLOSURE OF a single cause of action is intended "to prevent repoated
MORTGAGE AFTER OBTAINING A PERSONAL litigation between the same parties in regard to the same
JUDGMENT; WAIVER.—Most of the provisions of the subject of controversy; to protect defendant from
Code of Civil Procedure are taken from that of California, unnecessary vexation; and to avoid the costs and
and In that jurisdiction the rule has always been, and still is, expenses incident to numerous suits." (1 C. J., 1107.) It
that a party who sues and obtains a personal judgment comes from that old maxim nemo debet bis vexare pro una
against a defendant upon a note, waives thereby his right et eadem causa (no man shall be twice vexed for one and
to foreclose the mortgage securing it. the same cause). And it developed, certainly not as an
original legal right of the defendant, but as an interposition
of courts upon principles of public policy to prevent
1. 2.ID.; ID.; ID.; RULE FOUNDED ON STATUTORY
inconvenience and hardship incident to repeated and
PROVISIONS.—It is true that this rule is founded on
unnecessary litigations. (1 C. J., 1107.)
express statutory provisions to that effect. In this
jurisdiction, section 708 of the Code of Civil Procedure
provides that a creditor holding a claim against the 1. 5.ID.; ID.; ID.; ID.—For non-payment of a note secured by
deceased, secured by a mortgage or other collateral mortgage, the creditor has a single cause of action against
security, has to elect between enforcing such security or the debtor. This single cause of action consists in the
abandoning it by presenting his claim before the committee recovery of the credit with execution of the security. In other
and share in the general assets of the estate. Under this words, the creditor in his action may make two demands,
provision, it has been uniformly held by this court that, if the the payment of the debt and the foreclosure of his
plaintiff elects one of the two remedies thus provided, he mortgage. But both demands arise from the same cause,
waives the other, and if he fails, he fails utterly. the non-payment of the debt, and, for that reason, they
constitute a single cause of action.
1. 3.ID.; ID.; ID.; PRINCIPLE FOLLOWED IN ORDINARY
ACTIONS.—There is indeed no valid reason for not 1. 6.ID.; ID.; ID.; ID.—Though the debt and the mortgage
following the same principle of procedure in ordinary civil constitute separate agreements, the latter is subsidiary to
actions. With the substitution of the administrator or the former, and both refer to one and the same obligation.
executor in place of the deceased, or Consequently, there exists only one cause of action for a
single breach of that obligation. Plaintiff, then, by applying
the rule above stated, cannot split up his single cause of
288
action by filing a complaint for payment of the debt, and
288 PHILIPPINE REPORTS ANNOTATED thereafter another complaint for ' foreclosure of the
Bachrach Motor Co., vs. Icarañgal mortgage. If he does so, the filing of the first complaint will
bar the subsequent complaint.
1. of the assignee or receiver in place of the insolvent debtor,
the position of the parties plaintiff and defendant in the 1. 7.ID. ; ID. ; ID. ; ID.—By allowing the creditor to file two
litigation is exactly the same in special or insolvency separate complaints simultaneously or successively, one to
proceedings as in ordinary civil actions. recover his credit and another to foreclose his mortgage,
the court would in effect, be authorizing him plural redress
Page 1 of 7
 for a single breach of contract at so much cost to the courts hundred fourteen pesos (P1,614), and in security for its payment, said
and with so much vexation and oppression to the debtor. In Esteban Icarañgal executed a real estate mortgage on a parcel of land in
the absence of express statutory provisions, a mortgage Pañgil, Laguna, which was duly registered on August 5, 1931, in the registry
creditor may institute against the mortgage debtor either a of deeds of the Province of Laguna. Thereafter, promissors defaulted in the
personal action for debt payment of the agreed monthly installments; wherefore, plaintiff instituted in
the Court of First Instance of Manila an action for the collection of the amount
289 due on the note. Judgment was there rendered for the plaintiff. A writ of
execution was subsequently issued and, in pursuance there-
VOL. 68, MAY 29, 1939 289 290
Bachrach Motor Co., vs. Icarañgal 290 PHILIPPINE REPORTS ANNOTATED
Bachrach Motor Co., vs. Icarañgal
1. or a real action to foreclose the mortgage. of, the provincial sheriff of Laguna, at the indication of the plaintiff, levied on
the properties of the defendants, including that which has been mortgaged by
1. 8.ID. ; ID. ; ID. ; ID.—A rule that would authorize the plaintiff Esteban Icarañgal in favor of the plaintiff. The other defendant herein,
to bring a personal -action against the debtor and Oriental Commercial Co., Inc., interposed a third-party claim, alleging that by
simultaneously or successively another action against the. virtue of a writ of execution issued in civil case No. 88253 of the municipal
mortgaged property, would result not only in multiplicity of court of the City of Manila, the property which was the subject of the
suits so offensive to justice, but also in subjecting the mortgage and which has been levied upon by the sheriff, had already been
defendant to the vexation of being sued in the place of his acquired by it at the public auction on May 12, 1933. By reason of this third-
residence or of the residence of the plaintiff, and then again party claim, the sheriff desisted from the sale of the property and, in
in the place where the property lies. consequence thereof, the judgment rendered in favor of the plaintiff remained
unsatisfied. Whereupon, plaintiff instituted an action to foreclose the
mortgage. The trial court dismissed the complaint and, from the judgment
1. 9.ID. ; ID. ; ID. ; ID.—The creditor's cause of action is not thus rendered, plaintiff took the present appeal.
only single but indivisible, although the agreements of the The sole question before us is whether or not plaintiffappellant is barred
parties, evidenced by the note and the deed of mortgage, from foreclosing the real estate mortgage after it has elected to sue and
may give rise to different remedies. (Frost vs. Witter, 132 obtain a personal judgment against the defendant-appellee on the
Cal., 421.) The cause of action should not be confused with promissory note for the payment of which the mortgage was constituted as a
the remedy created for its enforcement. And considering, security.
that one of the two remedies available to the creditor is as In Hijos de I. de la Rama vs. Sajo (45 Phil., 703), the mortgage creditor,
complete as the other, he cannot be allowed to pursue both instead of instituting proceedings for .the foreclosure of his mortgage, filed a
in violation of those principles of procedure intended to personal action for the recovery of the debt. The mortgage debtor objected to
secure simple, speedy, and unexpensive administration of the action, alleging that, if it be allowed, he would be subjected to two suits,
justice. one personal and another for the foreclosure of the mortgage. We answered
this objection, laying down the rule that "in the absence of statutory
APPEAL from a judgment of the Court of First Instance of Laguna. Boncan, provisions, the mortgagee may waive the right to foreclose his mortgage and
J. maintain a personal action for the recovery of the indebtedness." And we
The facts are stated in the opinion of the court. emphasized the doctrine in the later part of our decision by saying that "the
B: Francisco for appellant. rule is well established that the creditor may waive whatever security he has
Matias P. Perez for appellees. and maintain a personal action, in the absence of statutory provisions to the
contrary." (P. 705.)
MORAN, J.: 291
VOL. 68, MAY 29, 1939 291
On June 11, 1930, defendant herein, Esteban Icarañgal, with one Jacinto Bachrach Motor Co., vs. Icarañgal
Figueroa, for value received, executed in favor of the
plaintiff, Bachrach Motor Co., Inc., a promissory note for one thousand six
Page 2 of 7
It is true that in Matienzo vs. San Jose (G. R. No. 39510, June 16, 1934), a But, even if we have no such section 708 of our Code of Civil Procedure,
decision of three justices of this court ruled that "apart from special or section 59 of the Insolvency Law, we have still the rule against splitting a
proceedings regulated by statute, an unsatisfied personal judgment for a debt single cause of action. This rule, though not contained in any statutory
is no bar to an action to enforce a mortgage or other lien given as security for provision, has been applied by this court in all appropriate cases. Thus,
such debt." But this decision cannot be made to prevail over a decision given in Santos vs. Moir (36 Phil., 350, 359), we said: "It is well recognized that a
by this court in banc. Besides, the rule laid down in the De la Rama case is party cannot split a single cause of action into parts and sue on each part
more in harmony with the principles underlying our procedural system. separately. A complaint for the recovery of personal property with damages
Most of the provisions of our Code of Civil Procedure are taken from that for detention states a single cause of action which cannot be divided into an
of California, and in that jurisdiction the rule has always been, and still is, that action for possession and one for damages; and if suit is brought for
a party who sues and obtains a personal judgment against a defendant upon possession only a subsequent action cannot be maintained to recover the
a note, waives thereby his right to foreclose the mortgage securing it. damages resulting from the unlawful detention." In Rubio de
(Ould vs. Stoddard, 54 Cal., 613; Felton vs, West, 102 Cal., Larena vs. Villanueva (53 Phil., 923, 927), we reiterated the rule by stating
266; Craiglow vs. Williams, 514 Cal. App., 45; 188 Pac., 76, following that" * * * a party will not be permitted to split up a single cause of action and
doctrine in Biddel vs. Brizzolara, 64 Cal., 354; 30 Pac., 609; Brown vs. Willis, make it the basis for several suits" and that when a lease provides for the
67 Cal., 235; 7 Pac., 682; Barbieri vs. Ramelli, 84 Cal., 134; 23 Pac., payment of the rent in separate installments, each installment constitutes an
1086; Toby vs. Oregon Pac. R. Co., 98 Cal., 490; 33 Pac., independent cause of action, but when, at the time the complaint is filed,
550; McKean vs. German-American Sav. Bank., 118 Cal., 334; 50 Pac., there are several installments due, all of them constitute a single cause of
656; Woodward vs. Brown, 119 Cal., 283; 63 Am. St. Rep., 108; 51 Pac., 2, action and should be included in a single complaint, and if
542; Meyer vs. Weber, 133 Cal., 681; 65 Pac., 1110; Crisman vs. Lanterman, 293
149 Cal., 647, 651; 117 Am. St. Rep., 167; 87 Pac., 89; Gnarin vs. Swiss VOL. 68, MAY 29, 1939 293
American Bank, 102 Cal., 181; 121 Pac., 726.) The same rule obtains in the Bachrach Motor Co., vs. Icarañgal
States of Idaho, Montana, Nevada and Utah. (See 2 Johns on Mortgages, some of them are not so included, they are barred. The same doctrine is
986, 1015, 1019, 1046.) It is true that this rule is founded on express stated in Lavarro vs. Labitoria (54 Phil., 788), wherein we said that "a party
statutory provisions to that effect. We have here, however, section 708 of our will not be permitted to split up a single cause of action and make it a basis
Code of Civil Procedure which provides that a creditor holding a claim for several suits" and that a claim for partition of real property as well as for
against the deceased, secured by a mortgage or other collateral security, has improvements constitutes a single cause of action, and a complaint for
to elect between enforcing such security or abandoning it by presenting his partition alone bars a subsequent complaint for the improvements. And
claim before the committee and share in the general assets of the estate. in Blossom & Co. vs. Manila Gas Corporation (55 Phil., 226, 240), we held
Under this provision, it has been uniformly held by this court that, if the that "as a general rule a contract to do several things at several times is
plaintiff divisible in its nature, so as to authorize successive actions; and a judgment
292 recovered for a single breach of a continuing contract or covenant is no bar
292 PHILIPPINE REPORTS ANNOTATED to a suit for a subsequent breach thereof. But where the covenant or contract
Bachrach Motor Co., vs. Icarañgal is entire, and the breach total, there can be only one action, and plaintiff must
elects one of the two remedies thus provided, he waives the other, and if he therein recover all his' damages."
fails, he fails utterly. (Veloso vs. Heredia, 33 Phil., 306; Cf. Osorio vs. San The rule against splitting a single cause of action is intended "to prevent
Agustin, 25 Phil., 404.) The same rule applies under the Insolvency Law. repeated litigation between the same parties in regard to the same subject of
(Sec. 59, Act No. 1956; Unson and Lacson vs. Central Capiz, 47 Phil., controversy; to protect defendant from unnecessary vexation; and to avoid
42; Chartered Bank of India, Australia and China vs. Imperial, 48 Phil., the costs and expenses incident to numerous suits." (1 C. J., 1107.) It comes
931; O'Brien vs. Del Rosario and Bank of the Philippine Islands, 49 Phil., from that old maxim nemo bedet bis vexare pro una et eadem cause (no man
657.) There is indeed no valid reason for not following the same principle of shall be twice vexed for one and the same cause). (Ex parte Lange, 18 Wall.,
procedure in ordinary civil actions. With the substitution of the administrator 163, 168; 21 Law. ed., 872; also U. S. vs. Throckmorton, 98 U. S., 61; 25
or executor in place of the deceased, or of the assignee or receiver in place Law. ed., 93.) And it developed, certainly not as an original legal right of the
of the insolvent debtor, the position of the parties plaintiff and defendant in defendant, but as an interposition of courts upon principles of public policy to
the litigation is exactly the same in special or insolvency proceedings as in prevent inconvenience and hardship incident to repeated and unnecessary
ordinary civil actions. litigations. (1 C. J., 1107.)

Page 3 of 7
 For non-payment of a note secured by mortgage, the creditor has a single 404), but also in subjecting the defendant to the vexation of being sued in the
cause of action against the debtor. This single cause of action consists in the place of his residence or of the residence of the plaintiff, and then again in
recovery of the credit with execution of the security. In other words, the the place where the property lies.
creditor in his action may make two demands, the payment of the debt and In arriving at the foregoing conclusion, we are not unaware of the rule
the foreclosure of his mortgage. But both demands arise from the same prevailing in certain States of the American Union, to the effect that, in cases
cause, the non-pay- like the one at bar, the creditor can pursue his remedies against the note and
294 against the. security concurrently or successively. The reason given for the
294 PHILIPPINE REPORTS ANNOTATED rule seems 10 be that the causes of action in the two instances are not the
Bachrach Motor Co., vs. Icarañgal same, one being personal and the other, real. But, as we have heretofore
ment of the debt, and, for that reason, they constitute a single cause of stated, the creditor's cause of action is not only single but indivisible,
action. Though the debt and the mortgage constitute separate agreements, although the agreements of the parties, evidenced by the note and the
the latter is subsidiary to the former, and both refer to one and the same deed of mortgage, may give rise to different remedies. (Frost vs. Witter, 132
obligation. Consequently, there exists only one cause of action for a single Cal., 421.) The cause of action should not be confused with the remedy
breach of that obligation. Plaintiff, then, by applying the rule above stated, created for its enforcement. And considering, as we have shown, that one of
cannot split up his single cause of action by filing a complaint for payment of the two remedies available to the creditor is as complete as the other, he
the debt, and thereafter another complaint for foreclosure of the mortgage. If cannot be allowed to pursue both in violation of those principles of procedure
he does so, the filing of the first complaint will bar the subsequent complaint. intended to secure simple, speedy and unexpensive administration of justice.
By allowing the creditor to file two separate complaints simultaneously or Judgment is affirmed, with costs against the appellant.
successively, one to recover his credit and another to foreclose his mortgage, Avanceña, C. J., Villa-Real, and Concepcion, JJ., concur.
we will, in effect, be authorizing him plural redress for a single breach of
contract at so much cost to the courts and with so much vexation and IMPERIAL, J., dissenting:
oppression to the debtor.
We hold, therefore, that, in the absence of express statutory provisions, a The legal question raised is whether the plaintiff, as mortgagee, has waived
mortgage creditor may institute against the mortgage debtor either a personal its right to foreclose a real estate mortgage by its commencement of a
action for debt or a real action to foreclose the mortgage, In other words, he personal action to collect the secured debt or loan; in other words, whether it
may pursue either of the two remedies, but not both. By such election, his is precluded from bringing foreclosure suit after instituting a personal action
cause of action can by no means be impaired, for each of the two remedies for the recovery of the indebtedness represented by the note.
is complete in itself. Thus, an election to bring a personal action will leave 296
open to him all the properties of the debtor for attachment and execution, 296 PHILIPPINE REPORTS ANNOTATED
even including the mortgaged property itself. And, if he waives such personal Bachrach Motor Co., vs. Icarañgal
action and pursues his remedy against the mortgaged property, an To support the affirmative of the proposition the majority decision cites the
unsatisfied judgment thereon would still give him the right to sue for a case of Hijos de I. de la Rama vs, Sajo (45 Phil., 703), and asserts that the
deficiency judgment, in which case, all the properties of the defendant, other said case has expressly held that a real estate mortgagee who has brought
than the mortgaged property, are again open to him for the satisfaction of the an ordinary personal action for the recovery of a debt stated in a note should
deficiency. ln either case, his remedy is complete, his cause of action be deemed to have waived the foreclosure suit and is estopped thereafter
undiminished, and any advantages attendant to the pursuit of one or the from bringing an action upon the mortgage. I have read the aforesaid
other remedy are purely accidental and are all under his right of election. On decision and have come to the conclusion that the doctrine relied upon is
the other hand, a rule that would authorize the plaintiff to neither found nor laid down therein. The said case had to do with the
295 mortgage of real and personal property executed to secure the payment of
VOL. 68, MAY 29, 1939 295 P35,000. Instead of filing foreclosure suit, the plaintiff mortgagee instituted a
Bachrach Motor Co., vs. Icarañgal personal action to recover only the amount of the note and interest thereon.
bring a personal action against the debtor and simultaneously or The question raised was whether it could maintain the personal action there
successively another action against the mortgaged property, would result not being, as there was, a mortgage contract. The defendant contended that the
only in multiplicity of suits so offensive to justice (Soriano vs. Enriques, 24 action did not lie, for otherwise he would be subjected to another real action,
Phil., 584) and obnoxious to law and equity (Osorio vs. San Agustin, 25 Phil, that upon the mortgage. Resolving this legal question, this court spoke thus:

Page 4 of 7
"The appellant argues, however, that if the plaintiff may waive his right under indebtedness, upon the commencement of the second action, has not been
the mortgage and maintain a personal action, he is liable to be subject to two fully paid.
actions. That contention, in our judgment, is without merit. * * * The rule is 298
well established that the creditor may waive whatever security he has and 298 PHILIPPINE REPORTS ANNOTATED
maintain a personal action, in the absence of statutory provisions in the Bachrach Motor Co., vs. Icarañgal
contract, In this jurisdiction there are no statutes covering the question. * * * "Where there is a principal debt or obligation with some other obligation as
While it is true in some jurisdictions, by virtue of statutory provisions, that collateral to or security therefor, each gives rise to a separate cause of action
when a mortgage is given to secure the payment of an indebtedness the for which different actions may be brought, although. there can be but one
action brought to recover a judgment for said indebtedness must be one for satisfaction, of the amount of the debt. This rule applies in the case of a
the foreclosure of the mortgage, yet we are of the opinion that in the absence principal debt with a collateral note or bond, and also in the case of a note or
of statutory provisions the mortgagee may waive the right to foreclose his bond with a mortgage given as security therefor, unless it is otherwise
mortgage and maintain a personal action f or the recovery of the provided by statute." (Ford vs. Burks, 37 Ark., 91; Fairchild vs. Holly, 10
indebtedness. There is no statutory provision in this jurisdiction prohibiting a Conn., 4/4; White vs. Smith, 33 Pa., 186; Anderson vs. Neef, 32 Pa.,
personal action to recover a sum of money even though a 379; Jordan vs. Massey, 134 S. W., 804; Clark vs. Young, 2 Law. ed., 74;
297 McCullough vs. Hellman, 8 Or., 191; Milwaukee First Nat. Bank vs. Finck, 76
VOL. 68, MAY 29, 1939 297 N. W., 608; 1 C. J., p. 1115, sec. 294.)
Bachrach Motor Co., vs. Icarañgal Upon the other hand, the majority decision does not give importance to
mortgage has been given as security for the payment of the same." It will be the doctrine enunciated in the case of Matienzo vs. San Jose (G. R. No.
noted that all that was said and held in said case is that the mortgagee may 39510), where the same legal question was squarely passed upon in the
waive the foreclosure suit and bring the personal action for the sole purpose sense that in this jurisdiction the mortgagee is not precluded from availing
of recovering the debt. The doctrine now sought to be established, to the himself of both actions, that for the recovery of the debt or note, and that to
effect that in such case the mortgagee waives in fact and in law his action foreclose the mortgage when the debt has not yet been paid. We said in that
upon the mortgage and that he is already estopped from bringing the latter case: "Apart from special proceedings regulated by statute, an unsatisfied
should he have previously instituted the personal action, has not been personal judgment for a debt is no bar to an action to enforce a mortgage or
enunciated. We should not lose sight of the material difference between "to other lien given as security for such debt."
be able to waive" and the fact that he has waived or that he has in law
actually waived the action upon the mortgage. If that decision had simply said In treating lightly of the doctrine laid down in the latter case, the majority
that the mortgagee "may waive" the foreclosure suit, it was doubtless decision states that it is not binding upon the court because the decision was
because there are cases, as the present, where should the creditor fail in his signed by three justices only, without considering, however, that while it was
personal action and the debt remains unpaid notwithstanding the execution promulgated by a division of three justices, before the law it was a decision of
of the judgment obtained, there is no doubt that said mortgagee may yet the Supreme Court. ., We have repeatedly said that the decisions
maintain a foreclosure suit for the purpose of executing the security. This promulgated by a division of this court, under the former law, have the same
idea is corroborated by the language in the said decision that "There is no legal force and weight as though rendered by the Supreme Court, for the
statutory provision in this jurisdiction prohibiting a personal action to recover obvious reason that the Supreme Court is only one and is by law authorized
a sum of money even though a mortgage has been given as security for the to work in divisions and decide cases within the latter's jurisdiction. It is
payment of the same " strange to
The only existing prohibition against the simultaneous or alternative 299
institution of the two cumulative actions available to a real estate mortgagee VOL. 68, MAY 29, 1939 299
is found in section 708 of the Code of Civil Procedure providing that the filing Bachrach Motor Co., vs. Icarañgal
of a claim against the property of a deceased person, secured by a state that a rule or doctrine enunciated in a decision rendered by one of the
mortgage, implies the waiver of the latter, and the creditor cannot thereafter former divisions of this court neither binds nor constitutes a precedent of the
make use of his right to bring a real action, and vice versa. But this rule is Supreme Court, as it is now constituted, just because the decision has been
only applicable to actions arising from mortgages upon property of deceased promulgated and authorized by three justices. I can not find persuasive force
persons. In other cases the mortgagee may not only bring real and personal in the argument or imagine any weighty reason to view a rule or doctrine thus
actions but may avail himself thereof successively as long as the enunciated with indifference or disregard. The doctrine, when sound and
based upon the law, has the same legal and convincing force as any decision
Page 5 of 7
promulgated with the concurrence of seven justices. What is persuasive in a accessory, which is the mortgage properly so-called. (Arts. 1857, 1858 and
decision of a constituted court of justice is not the number of votes of the 1861, Civil Code; 1 C. J., p. 1115, sec. 294.)
justices composing it, but the legal grounds upon which it rests. When a Commenting on paragraph 1 of article 1857 of the Civil Code (vol. 12, p.
decision subscribed by seven votes is erroneous and without support either 341), Manresa has the following to say:
in the law or in the facts, evidently it has less persuasive value than another ''This requisite arises from the object and purpose of said contracts and from
decision authorized by three votes only under the old law. the accessory character which distinguishes them, for both the pledge and
The majority decision states: the mortgage are purely accessory contracts and as such, like all others of
"For non-payment of a note secured by mortgage, the creditor has a single the same kind, cannot exist without a principal obligation, prior or
cause of action against the debtor. This single cause of action consists in the coetaneous, for which they serve as a security, from which it follows that
recovery of the credit with execution of the security. In other words, the without said principal obligation, such contracts cannot subsist or come
creditor in his action may make two demands, the payment of the debt and about. Hence, altho there is a promise to constitute a pledge or a mortgage,
the foreclosure of his mortgage, But both demands arise from the same this promise is not demandable while the obliga-
cause, the non-payment of the debt, and, for that reason, they constitute a
single cause of action. Though the debt and the mortgage constitute 301
separate agreements, the latter is subsidiary to the former, and both refer to VOL. 68, MAY 29, 1939 301
one and the same obligation. Consequently, there exists only one cause of Bachrach Motor Co., vs. Icarañgal
action for a single breach 01 that obligation. Plaintiff, then, by applying the tion to be secured in any of said forms has no existence or has not been
rule above stated, cannot split up his single cause of action by filing a constituted.
complaint for payment of the debt, and thereafter another complaint for "Such contracts, therefore, fall under the same case as that of guaranty,
foreclosure of the mortgage. if he does so, the filing of the first complaint will with respect to which they have this common and analogous character, and,
bar the subsequent complaint. By allowing the creditor to file two separate as in the case of guaranty, the pledge and the mortgage cannot have juridical
complaints simultaneously or successively, one to recover his credit and existence without a valid obligation for which they serve as a security, for
another to foreclose his mort- while the article we are commenting does not expressly require the condition
of validity of the obligation which is to be the object of the said contracts, as
300 is done in article 1824 with respect to guaranty, that condition is understood
300 PHILIPPINE REPORTS ANNOTATED to be imposed, because the void acts among which are to be counted the
Bachrach Motor Co., vs. Icarañgal obligations secured by the pledge or the mortgage, if not valid, cannot
gage, we will, in effect, be authorizing him plural redress for a single breach produce any juridical effect.
of contract at so much cost to the courts and with so much vexation and "The pledge and the mortgage being in the same condition as that of
oppression to the debtor." guaranty, with respect to their accessory character, it is evident that what we
said with respect to this in the preceding title is now applicable to the two
This part of the majority decision involves various propositions that will bear contracts aforesaid, without the necessity now or at present to go into further
clarification or rectification. ln fine, it is affirmed that a contract of real estate explanation of this common character or essential requisite of one and the
mortgage implies a single action or a single cause of action only; that while other of the aforesaid contracts."
the contract includes the loan, which is the principal, and the mortgage,
which is the accessory, when the creditor elects to bring the action for the If a contract of real estate mortgage, by its nature, necessarily includes two
recovery of the debt, he may not institute the other for the foreclosure of the distinct and separate contracts, namely, the loan and the mortgage, it is
mortgage; and that if the commencement of the actions is authorized the obvious and undoubted that the creditor has also two independent and
result would be vexatious and oppressive upon the debtor. separate rights, to wit, to recover the debt and to foreclose the mortgage; and
The first point is of transcendental importance and should not constitute a if he has two rights it cannot be denied that two actions or causes of action
doctrine in this jurisdiction because it undermines the foundation of the are available to him upon the principle that for every right he has necessarily
institution of real estate mortgage consecrated by the civil law. All the a corresponding action, and the latter is the correlative of the former. For this
countries that have adopted the civil law inspired by the Roman law, and reason section 256 of our Code of Civil Procedure provides that the judgment
even those that have based it on Anglo-Saxon and American principles have rendered in a foreclosure suit should require, first, that the debtor against
recognized and proclaimed that the contract of mortgage supposes and whom judgment is rendered should pay his indebtedness to the creditor or
implies two contracts, one the principal, which is the loan, and the other the
Page 6 of 7
deposit it in court, and, secondly, that in default thereof, the mortgaged been shown that there are two causes of action, for the enforcement of which
property should be sold. there is no need of dividing or separating them as they are already separate
302 and independent. in truth, what is intended to be applied to the case is the
302 PHILIPPINE REPORTS ANNOTATED rule of merger of actions because with the doctrine desired to be established
Bachrach Motor Co., vs. Icarañgal it is sought to enunciate the rule that from two separate and independent
This procedure marked out for the foreclosure of a mortgage merely actions arising from the complex contract of mortgage, not more than one of
corroborates and executes the fundamental idea that a mortgage implies two them can De instituted, which, as we have said, is not supported by any law,
contracts giving rise to two rights in favor of the creditor who is also entitled express or implied, in this jurisdiction. For the foregoing reasons, I dissent
to two actions or two causes of action. from the majority decision and vote to reverse the appealed judgment.
It is, consequently, incorrect to state and lay down as a doctrine of the
Supreme Court that in a contract of real estate mortgage there is, under the DIAZ, J,, dissenting:
law, but one action, that upon the mortgage.
The second point is refuted by the decision in the case I concur with Justice Imperial, and vote to reverse the appealed judgment.
of Matienzo vs. San Jose, supra, wherein it was held, soundly because
founded upon the law, that with the exception of special proceedings, an LAUREL, J., dissenting:
unsatisfied personal judgment for debt is not a bar to an action to foreclose a
mortgage 'or any lien given to secure an indebtedness, and by what has In the absence of clear legislative expression, the. remedy here is
been said in the case of Hijos de I. de la Rama vs. Sajo, supra, that in this cumulative, not alternative.
jurisdiction there is no law prohibiting personal and real actions, apart from The principle 01 non bis in idem, suggested by the appellees and
those cases where the mortgagee has to enforce his right against the accepted by the majority, is inapplicable here.
property of deceased persons. In laying down the doctrine that upon the 1, therefore, concur 111 the preceding dissent of Justice Imperial.
commencement of a personal action the mortgagee cannot bring the real Judgment affirmed.
action, the majority decision does not cite any authority in support thereof,
and I said that it does not cite any authority because the California decisions _____________
cited cannot be applied in this jurisdiction inasmuch as in that State there is a
positive and express law prohibiting the second action when the mortgagee
has elected to exhaust the first.
As to the third point, it is said that the other ground of the rule sought to
be established is that, if the second action is permitted, the debtor would be
subjected to vexatious and oppressive proceedings. This is likewise
incorrect, at least in those cases where, as in the present, the debt has not
been paid when an attempt was made to execute the personal judgment
obtained by the creditor. In the present case the debtor cannot plead
oppression or vexation as he has not yet satisfied his indebtedness, and this
is so because when the sheriff tried to execute the judg-
303
VOL. 68, MAY 29, 1939 303
Bachrach Motor Co., vs. Icarañgal
ment, Oriental Commercial Co., Inc., presented a thirdparty claim alleging
that it had acquired ownership of the mortgaged property.
To strengthen the doctrine sought to be established, the majority decision
applies the rule of splitting of actions. This is another objectionable feature of
the majority decision. The rule of the procedure relied upon is not applicable
to the present case because it refers solely to those where there is only one
action or cause of action. In the case under consideration it has already'

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