Bachrach Motor Co. vs.
Summers, GR L-17393, July 21, 1921
FACTS:
On March 9, 1920, Elias Aboitiz executed a chattel mortgage upon a Nash automobile, bearing
the Factory No. 143643, in favor of the Bachrach Motor Company, Inc., to secure a debt for
P3,675, payable in twelve installments.
In the month of November of the same year, the mortgagor defaulted in the payment of the
installment for that month; and as a consequence the Motor Company determined to have the car
sold for the purpose of foreclosing the mortgage, in the manner prescribed in section 14 of the
Chattel Mortgage Law (Act No. 1508).
It accordingly requested Ricardo Summers, as sheriff of the city of Manila, to take the car from
the debtor and to expose it to public sale, as provided in said section. Acting in pursuance of this
authority the sheriff applied to the mortgagor for the automobile; but the mortgagor refused to
surrender possession; and the Motor Company instituted an action of replevin to recover the car.
However, its effort to get possession were again destined to be temporarily baffled, as Aboitiz
gave bond for the retention of the automobile pendente lite. The Motor Company thereupon filed
the present petition in this court for the writ of mandamus to compel the sheriff to seize the car
from the mortgagor and sell it. To this petition the sheriff demurred, and the cause is now before
us for the determination of the issues thus presented.
ISSUES:
WON, after default by the mortgagor in the performance of the conditions of a chattel mortgage,
the sheriff is unconditionally bound to seize the mortgaged property, at the instance of the
creditor, and sell it to satisfy the debt. The petitioner supposes that the sheriff must so proceed
and that, upon failure to do so, he can be compelled thereto by the writ of mandamus.
HELD:
NO. It will be observed that the law places the responsibility of conducting the sale upon "a
public officer;" and it might be supposed that an officer, such as the sheriff, can seize the
property where the creditor could not. This suggestion is, we think, without force, as it is
manifest that the sheriff or other officer proceeding under the authority of the language already
quoted from section 14 of the Chattel Mortgage Law, becomes pro hac vice the mere agent of the
creditor. There is nothing in this provision which creates a specific duty on the part of the
officer to seize the mortgaged property; and no intention on the part of the law-making
body to impose such a duty can be implied.
The conclusion is clear that for the recovery of possession, where the right is disputed, the
creditor must proceed along the usual channels by action in court. Whether the sheriff, upon
being indemnified by the creditor, could safely proceed to take the property from the debtor, is a
point upon which we express no opinion.
Whether the mortgagee becomes the real owner of the mortgaged property — as some suppose
— or acquires only certain rights therein, it is none the less clear that he has after default the
right of possession; though it cannot be admitted that he may take the law into his own hands and
wrest the property violently from the possession of the mortgagor. Neither can he do through the
medium of a public officer that which he cannot directly do himself. The consequence is that in
such case the creditor must either resort to a civil action to recover possession as a preliminary to
a sale, or preferably he may bring an action to obtain a judicial foreclosure in conformity, so far
as practicable, with the provisions of the Chattel Mortgage Law.
