Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

18520 September 26, 1922

IN O!UNTAR" INSO! ENC" O# PAU! STROC$EC%ER, appellee, vs. I!&E#ONSO RAMIRE', creditor and appellant. (I!!IAM E&MON&S, assignee. Lim & Lim for appellant. Ross & Lawrence and Antonio T. Carrascoso, jr., for the Fidelity & Surety Co. ROMUA!&E', J.: The question at issue in this appeal is, which of the two mortgages here in question must be given preference? Is it the one in favor of the Fidelit ! "uret #o., or that in favor of Ildefonso Ramire$. The first was declared b the trial court to be entitled to preference. In the lower court there were three mortgagees each of whom claimed preference. The were the two above mentioned and #oncepcion % ala. The latter&s claim was re'ected b the trial court, and from that ruling she did not appeal. There is no question as to the priorit in time of the mortgage in favor of the Fidelit ! "uret #o. which was e(ecuted on March )*, )+)+, and registered in due time in the registr of propert , that in favor of the appellant being dated "eptember ,,, )+)+, and registered also in the registr . The appellant claims preference on these grounds- .a/ That the first mortgage above0mentioned is not valid because the propert which is the sub'ect0matter thereof is not capable of being mortgaged, and the description of said propert is not sufficient1 and .b/ that the amount due the appellant is a purchase price, citing article )+,, of the #ivil #ode in support thereof, and that his mortgage is but a modification of the securit given b the debtor on Februar )2, )+)+, that is, prior to the mortgage e(ecuted in favor of the Fidelit ! "uret #o. %s to the first ground, the thing that was mortgaged to this corporation is described in the document as follows. . . his half interest in the drug business 3nown as Anti ua !otica Ramire" .owned b "rta. 4olores del Rosario and the mortgagor herein referred to as the partnership/, located at #alle Real 5os. ),6 and ),2, 4istrict of Intramuros, Manila, Philippine Islands.

7ith regard to the nature of the propert thus mortgaged, which is one0half interest in the business above described, such interest is a personal propert capable of appropriation and not included in the enumeration of real properties in article 662 of the #ivil #ode, and ma be the sub'ect of mortgage. %ll personal propert ma be mortgaged. ."ec. ,, %ct 5o. )2*8./ The description contained in the document is sufficient. The law .sec. 9, %ct 5o. )2*8/ requires onl a description of the following natureThe description of the mortgaged propert shall be such as to enable the parties to the mortgage, or an other person, after reasonable inquir and investigation, to identif the same. Turning to the second error assigned, numbers ), ,, and 6 of article )+,, of the #ivil #ode invo3ed b the appellant are not applicable. 5either he, as debtor, nor the debtor himself, is in possession of the propert mortgaged, which is, and since the registration of the mortgage has been, legall in possession of the Fidelit ! "uret #o. ."ec. :, %ct 5o. )2*81 Me ers #s. Thein, )2 Phil., 6*6./ In no wa can the mortgage e(ecuted in favor of the appellant on "eptember ,,, )+)+, be given effect as of Februar )2, )+)+, the date of the sale of the drug store in question. ;n the )2th of Februar of that ear, there was a stipulation about a persons securit , but not a mortgage upon an propert , and much less upon the propert in question. Moreover, the appellant cannot den the preferential character of the mortgage in favor of the Fidelit ! "uret #o. because in the ver document e(ecuted in his favor it was stated that his mortgage was a second mortgage, subordinate to the one made in favor of the Fidelit ! "uret #o. The 'udgment appealed from is affirmed with costs against the appellant. "o ordered. Araullo, C.$., Street, %alcolm, A#ance&a, 'illamor, (strand and $ohns, $$., concur. The <awphil Pro'ect 0 %rellano <aw Foundation