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CredTrans | Atty.

Migallos | G01 | CAL

Diego v Fernando A mortgagee in possession and a creditor in an antichresis have the following similar or
G.R. No. L-15128 | August 25, 1960 | Reyes, J.B.L., J identical rights and obligations:
Plaintiff-Appellee: Cecilio Diego 1) if the mortgagee acquires possession in any lawful manner, he is entitled to retain
Defendant-Appellant: Segundo Fernando such possession until the indebtedness is satisfied and the property redeemed;
TOPIC: Antichresis 2) the non-payment of the debt within the term agreed does not vest the ownership of
DOCTRINE: If a contract of loan with security does not stipulate the payment of interest but the property in the creditor;
provides for the delivery to the creditor by the debtor of the property given as security, in order 3) the general duty of the mortgagee in possession towards the premises is that of the
that the latter may gather its fruits, without stating that said fruits are to be applied to the ordinary prudent owner;
payment of interest, if any, and afterwards that of the principal, the contract is a mortgage and 4) the mortgagee must account for the rents and profits of the land, or its value for
not antichresis. purposes of use and occupation, any amount thus realized going towards the
FACTS: discharge on the mortgage debt;
1. The defendant Segundo Fernando executed a deed of mortgage in favor of plaintiff 5) if the mortgage remains in possession after the mortgage debt has been satisfied,
Cecilio Diego over 2 parcels of land registered in his name, to secure a loan P2,000, he becomes a trustee for the mortgagor as to the excess of the rents and profits
without interest, payable within 4 years. After the execution, possession of the mortgaged over such debt;
properties were turned over to the mortagagee. 6) the mortgagor can only enforce his rights to the land by an equitable action for an
2. Fernando failed to pay after four years, with Diego having made several demands. account and to redeem.
Hence this action for foreclosure of mortgage.
3. Fernando claims that the transaction was one of antichresis and not of mortgage. Also 3. Since Fernando did not expressly waive his right to the fruits of the properties mortgaged
Diego had allegedly received a total of 120 cavans of palay from the properties given as during the time they were in Diegos possession, the latter, like an antichretic creditor,
security, which, at the rate of P10 a cavan, represented a value of P5,200. Hence his must account for the value of the fruits received by him, and deduct it from the loan
debt had already been paid, with Diego still owing him a refund of some P2,720. obtained by appellant.
4. The CFI found that it was really a mortgage and that the fact that possession of the
mortgaged properties were turned over to the mortgagee did not alter the In this case, Diego had received a net share of 55 cavans of palay; at the rate of P9.00
transaction. The parties must have intended that the mortgagee would collect the fruits per cavan, the total value of the fruits received by Diego is P495. Deducting this amount
of the mortgaged properties as interest on his loan, which agreement is not uncommon. from the loan of P2,000.00 received by Fernando from Diego, the former has only
Also Diego has already received 55 cavans of palay during his possession. Hence the P1,505.00 left to pay the latter.
CFI ordered Fernando to pay Diego 2K with interest and upon default, for the
foreclosure. Hence this appeal. WHEREFORE, the CFI judgement is MODIFIED in that Fernando is ordered to pay P1,505
and that Diego has the obligation to render an accounting of all the fruits received by him
ISSUE: W/ the contract between Diego and Fernando is mortgage or antichresis considering from the properties in question from the time of the filing of this action until full payment, or in
that the loan was without interest, coupled with the transfer of the possession of the properties case of appellant's failure to pay, until foreclosure of the mortgage thereon, the value of which
mortgaged to the mortgagee. fruits shall be deducted from the total amount of his recovery.

HELD: Mortgage.

1. To be antichresis, it must be expressly agreed between creditor and debtor that the
former, having been given possession of the properties given as security, is to apply their
fruits to the payment of the interest, if owing, and thereafter to the principal of his credit.


2. Diego is a mortgagee in possession, one who has lawfully acquired possession of the
premises mortgaged to him, standing upon his rights as mortgagee and not claiming
under another title, for the purpose of enforcing his security upon such property or
making its income help to pay his debt.