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DILAG VS.

HEIRS OF RESURRECION

FACTS:

Laureano Marquez was indebted to Fortunato Resurreccion in the sum of P5,000 as the balance
of the purchase price of a parcel of land. Fortunato Resurreccion in turn was indebted to the Luzon
Surety Company in the same amount, which was secured by a mortgage on three parcels of land,
one of which was that bought by Laureano Marquez from him. The formal deed of sale from
Resurreccion to Marquez was to be executed after Marquez shall have fully paid the purchase
price and after Ressurreccion shall have secured the cancellation of the mortgage by the Luzon
Surety Company.

Laureano Marquez had agreed to pay Fortunato Resurreccion's indebtedness of P5,000 to the
Luzon Surety Company by way of satisfaction of his own indebtedness to Fortunato Resurreccion
in the same amount.

He bound himself as follows: "In the event an action is presented by the Luzon Surety Company
against Fortunato Resurreccion for the recovery of the said indebtedness and the interests
thereon, I, Laureano Marquez, obligate myself to indemnify Fortunato Resurreccion for all the
damages he may suffer in case the parcels of land mortgaged to the Luzon Surety Company are
sold at public auction, including the fees of the attorneys of Fortunato Resurreccion in the suit
brought by the Luzon Surety Company as well as in the action that Fortunato Resurreccion may
bring against me in relation to this agreement." .

Laureano Marquez failed to pay the indebtedness of Fortunato Resurreccion to the Luzon Surety
Company, and the latter foreclosed judicially the mortgage executed in its favor by Fortunato
Resurreccion.

Pending the foreclosure sale of the lands mortgaged by Resurreccion to the Luzon Surety
Company, Laureano Marquez executed and delivered to Fortunato Resurreccion another
document. Since Laureano Marquez did not fulfill his promise contained in the first clause of the
instrument, with the result that the mortgaged properties were sold at public auction and were
totally lost by Fortunato Resurreccion, the latter commenced the present action against Laureano
Marquez upon the instrument (1) to recover the value of the lost properties amounting to P16,500,
with legal interest thereon from the date of the filing of the complaint, plus P2,000 as indemnity
for the rents of the lands sold and P1,000 as attorney's fees, and (2) to foreclose the mortgage
embodied in said instrument.

Issue:

Whether or not the mortgage was valid

Ruling:

No. The five parcels are said to have been acquired by Laureano Marquez subsequent to the
execution of Exhibit A. In the fifth clause of said document Laureano Marquez stipulated that
inasmuch as the five parcels of land described in the fourth clause were not sufficient to cover all
his obligations in favor of Fortunato Resurreccion, he also constituted a mortgage in favor of the
latter and his assignees on any other property he then might have and on those he might acquire
in the future. Such a stipulation did not constitute a valid mortgage on the five other parcels of
land which Laureano Marquez subsequently acquired. In the first place, Laureano Marquez could
not legally mortgage any property he did not yet own. In the second place, in order that a mortgage
may be validly constituted the instrument by which it is created must be recorded in the registry
of deeds, and in so far as the additional as parcels of land are concerned, the registration of
Exhibit A did not affect and could not have affected them because they were not specifically
described therein.

The contention of the respondents that after the institution of the present action notice of lis
pendens was filed in the registry of deeds affecting the said five additional parcels of land, merely
serves to emphasize the fact that there was no mortgage thereon; otherwise there would have
been no necessity for any notice of lis pendens.