Ownership of mortgaged property does not pass to the creditor

The provision of Article 2088 of the New Civil Code, which states that:

"Art. 2088. The creditor cannot appropriate the things given by way of pledge or mortgage, or dispose of them. Any stipulation to the contrary is null and void."

Based on the above-stated law, a creditor is prohibited from appropriating or disposing of the thing pledged or mortgaged to him or her. Any stipulation to the contrary on this matter is considered as null and void because this arrangement is in the nature of a pactum commissorium, which is prohibited by our law.

Further, in the case of Annaliza Singson vs. Spouses Nar Christian and Cecilia Carpio (GR 238714, Aug. 30, 2023), the Supreme Court, through Chief Justice Alexander Gesmundo, held that "Art. 2088 of the New Civil Code provides that a creditor cannot appropriate or consolidate ownership over a mortgaged property merely upon failure of the mortgagor to pay a debt obligation. The essence of pactum commissorium is that ownership of the security will pass to the creditor by the mere default of the debtor.

Incidentally, the only right of a mortgagee, in case of nonpayment of debt secured by mortgage, would be to foreclose the mortgage and have the encumbered property sold to satisfy the outstanding indebtedness. The mortgagor's default does not operate to automatically vest in the mortgagee the ownership of the encumbered property, for any such effect is against public policy."

To conclude a creditor is prohibited from appropriating the things given to him/her by way of mortgage, or from disposing of the same even if the mortgagor-owner defaults in payment of the debt owed to the creditor.

As the ownership of a mortgaged property is not transferred to the creditor upon the default of payment of the debt, the creditor may not sell the same.

What to do when owner's duplicate certificate of title is lost

In the case of Heirs of Spouses Gervacio A. Ramirez and Martina Carbonel, represented by Cesar S. Ramirez and Elmer R. Aduca v. Joey Abon and the Register of Deeds of Nueva Vizcaya, GR 222916, July 24, 2019, penned by Associate Justice Alfredo Benjamin Caguioa, the Supreme Court discussed the requirements when the owner's duplicate certificate of title is lost/destroyed, viz.:

"Jurisprudence holds that Section 109 of Presidential Decree No. (PD) 1529 'is the law applicable in petitions for issuance of new owner's duplicate certificates of title which are lost or stolen or destroyed.'

"To clarify, in the instant case, what has been lost is the owner's duplicate copy of the subject OCT, and not the original copy of the OCT on file with the RD. As held in Billote v. Solis, '[a] reading of the provisions clearly reveals that Sections 18 and 19 of RA 26 applies only in cases of reconstitution of lost or destroyed original certificates of title on file with the Register of Deeds, while Section 109 of PD 1529 governs petitions for the issuance of new owner's duplicate certificates of title which are lost or destroyed.'

Hence, the petitioners Heirs of the Sps. Ramirez's original position in their Petition for Annulment of Judgment that RA 26 applies in the instant case, a theory they entirely abandoned in the instant Petition, is incorrect.

"Section 109 of PD 1529, which is the applicable law in the instant case, reads:

"SEC. 109. Notice and replacement of lost duplicate certificate. In case of loss or theft of an owner's duplicate certificate of title, due notice under oath shall be sent by the owner or by someone in his behalf to the Register of Deeds of the province or city where the land lies as soon as the loss or theft is discovered. If a duplicate certificate is lost or destroyed, or cannot be produced by a person applying for the entry of a new certificate to him or for the registration of any instrument, a sworn statement of the fact of such loss or destruction may be filed by the registered owner or other person in interest and registered.

"Upon the petition of the registered owner or other person in interest, the court may, after notice and due hearing, direct the issuance of a new duplicate certificate, which shall contain a memorandum of the fact that it is issued in place of the lost duplicate certificate, but shall in all respects be entitled to like faith and credit as the original duplicate, and shall thereafter be regarded as such for all purposes of this decree.

"As explained by the CA, Former 14th Division in the assailed Decision, the requirements for the replacement of a lost owner's duplicate certificate of title can be summarized in the following manner:

"The requirements for the replacement of lost owner's duplicate certificate of title may be summarized, thus:

a) the registered owner or other person in interest shall send notice of the loss or destruction of the owner's duplicate certificate of title to the Register of Deeds of the province or city where the land lies as soon as the loss or destruction is discovered;

b) the corresponding petition for the replacement of the lost or destroyed owner's duplicate certificate shall then be filed in court and entitled in the original case in which the decree of registration was entered;

c) the petition shall state under oath the facts and circumstances surrounding such loss or destruction; and

d) the court may set the petition for hearing after due notice to the Register of Deeds and all other interested parties as shown in the memorandum of encumbrances noted in the original or transfer certificate of title on file in the office of the Register of Deeds; and

e) after due notice and hearing, the court may direct the issuance of a new duplicate certificate which shall contain a memorandum of the fact that it is issued in place of the lost or destroyed certificate and shall in all respects be entitled to the same faith and credit as the original duplicate."

To replace your lost owner's duplicate copy of the certificate of title, you may follow the afore-cited requirements.

Source: Manila Times

240 men started Magellan's voyage around the world. Only 18 finished it.

As it moored under Seville’s imposing skyline on September 8, 1522, the Victoria may not have stood out as anything exceptional among the bustle of Spanish ships arriving from the Americas. When 18 men stepped off board, “leaner than old, worn-out nags,” as one of them later recalled, they stepped into the history books as the first people to have sailed entirely around the world.

It had been a brutal voyage, led by the brilliant, if ruthless, Portuguese navigator Ferdinand Magellan. When they set out from Seville, three years before in summer 1519, they were a crew of 240 manning five ships. A series of blows—including starvation, illness, mutiny, executions, and the death of their leader—decimated their numbers and their fleet before returning to Spain.

These men had, however, completed their global journey, despite the violence and greed that marred it from the outset. The venture would be remembered for the skill and endurance of many of its members. As the first Europeans to enter the eastern Pacific, the expedition radically altered Europe’s understanding of the world, while posterity would lionize Magellan for an accomplishment that he never lived to see.

Despite the aura of heroism that has formed around Magellan, his voyage was not driven by geographic curiosity, but by trade and Spain’s struggle to surpass Portugal. Following Christopher Columbus’s voyages of the 1490s and the discovery of a landmass to the west, the two premier naval powers competed to control the new vistas opening before them. In 1493 Pope Alexander VI drew a line from north to south down the Atlantic, decreeing that Spain could exploit the new continent to the west. The papal bull did not specify, however, that Portugal could exploit the territory to the east of the line. 

Portugal cried foul, pointing out that the pope, a Borgia of Spanish descent, was not an impartial arbiter. To avoid a war, direct talks opened between Portugal and Spain and the line was moved farther west in the 1494 Treaty of Tordesillas. This allowed Portugal more room to maneuver down the eastern coastline of Africa. Happily for the Portuguese, Pedro Álvares Cabral’s 1500 discovery of the eastern coastline of South America fell on Portugal’s side of the 1494 line.

Portugal had already bested Spain in the exploration race, when in 1497 Vasco de Gama was the first European to discover a sea route to India around Africa. While this period of global exploration is often associated with the Americas, both powers were also seeking riches in the Asia-Pacific. It was there that Magellan gained experience vital to his later expedition.

A sea change

Born Fernão de Magalhães in northern Portugal in 1480, Magellan grew up in a noble family. At age 10 he was sent to Lisbon to train as a page in the court of Queen Leonora. He came of age as Europe began shaking off its medieval sensibilities and looking outward. The few sources on his early life suggest he became fascinated with maps and charts, an interest that may have coincided with the news, at age 13, of the Spanish expedition under Columbus that had made landfall in the Americas.

Portuguese eastward expansion began to move rapidly after Vasco de Gama rounded the Cape of Good Hope in 1497. By 1505 the 25-year-old Magellan was with the Portuguese fleet heading around the Cape, and up the other side, to East Africa. The aim of King Manuel of Portugal was to wrest control of the entire Indian Ocean from the Arabs so as to control trade with India.

In 1507 Magellan participated in a naval battle that consolidated Portuguese power over the Indian Ocean. More Portuguese victories followed in Goa (western India), and in 1511 the Portuguese seized Malacca on the Malay Peninsula. The city overlooks the strait through which the spices from modern-day Indonesia were funneled westward. By controlling Malacca, Portugal could exert control over the spice trade.

An older relative (and possible cousin) of Magellan, Francisco Serrão, had also forged a dramatic career as a sailor and took part in the seizure of Malacca before going on an expedition to the Moluccas, or Spice Islands, in 1512. His venture would later inspire Magellan’s own goal to reach them by sailing west from Europe.

Magellan took part in the battle for Malacca and honed his navigational skills during Portugal’s eastern victories. After returning to Europe, in 1514 he entered into a bitter dispute with King Manuel over the king’s refusal to reward him. Having used up all his appeals, Magellan rejected his native land and traveled to the Spanish court at Valladolid in 1517 to offer his services to the Spanish king Charles I (who would become Holy Roman Emperor Charles V in June 1519). From that day, Fernão de Magalhães would be known by his Spanish name, Fernando de Magallanes.

By offering his services to Spain, Magellan was not engaging in any truly scandalous behavior. Seafaring expertise often crossed borders, and crews were drawn from different nations. Columbus too, a Genoan from northern Italy, had offered himself to the Spanish crown after initially working for the Portuguese. Magellan’s plan was strikingly similar to Columbus’s from nearly 30 years earlier: to sail west to bring back spices from the Moluccas, the Spice Islands of Indonesia. 

Citing the theories of other navigators at the time, Magellan postulated that a strait cut through the Americas to a sea whose eastern shore was first glimpsed by Spanish explorer Vasco Núñez de Balboa in 1513. If he could find it, this passage would allow Spain a kind of “back-door” access to the Moluccas, bypassing Portugal’s Cape route. Magellan’s reputation as a sailor and his knowledge of the east convinced Charles, and the expedition received royal assent.

Not all were happy that this Portuguese interloper had gained such favor with the king. The nobility and the Casa de Contratación (the state body that controlled such expeditions) took every opportunity to obstruct Magellan’s preparations. Under two-thirds of the crew were Spaniards; of the foreigners, 24 were Portuguese and 27 were Italian.

Marvels and mutiny

Among the crew was a young Venetian nobleman named Antonio Pigafetta, a student of astronomy and geography. Pigafetta’s lively journal became history’s principal written source for detailed information on the entire voyage.

“On Monday, August 10, St. Lawrence’s day, the fleet, having been supplied with all the things necessary for the sea, made ready to leave the harbor of Seville,” Pigafetta recorded in his log. Five ships in total—the San Antonio, the Concepción, the Victoria, the Santiago, and the flagship, the Trinidad—struck out west from Spain via the Canary Islands. Pigafetta’s observations were not solely nautical. He took a lively interest in geography and zoology and science, noting different kinds of birds and wildlife.

While Pigafetta wrote his log, Magellan was deeply concerned about his authority. He was officially the supreme commander, but prior to departure, pressure from the Spanish authorities had forced him to accept a nobleman, Juan de Cartagena, as the voyage’s second-in-command. This decision led to violent power struggles during the voyage. Early on, Magellan was forced to arrest and demote Cartagena for insubordination. As a royal appointee, he was otherwise untouchable, but his resentful presence would prove nearly catastrophic for Magellan later.

The coast of modern-day Brazil, which Europeans had only been aware of for 20 years, was a source of wonder. But it was its inhabitants that captured Pigafetta’s attention most. He recorded in his journal that some of the people of “Verdin” (as he called it)

live a hundred, or a hundred and twenty, or a hundred and forty years, and more; they go naked, both men and women. Their dwellings are houses that are rather long . . . [and] in each of these houses . . . there dwells a family of a hundred persons, who make a great noise. In this place they have boats, which are made of a tree, all in one piece, which they call “canoo.” These are not made with iron instruments, for they have not got any . . . Into these thirty or forty men enter. 

Pigafetta’s writings revealed a condescending attitude toward the indigenous peoples. His descriptions of the peoples he meets in Patagonia, the Pacific Islands, and lands in Asia are centered on the amount of clothing worn, physical traits including skin color, height, and build, and whether they could be converted to Christianity. He recorded certain words from their languages, many of which related to commodities that could be of use to colonial Spain.

The small armada sailed south, scanning for any strait or opening in the great landmass to starboard. A great inlet in early 1520 aroused much excitement. Once it had been ascertained it was not the longed-for strait, but a river mouth (the Río de la Plata), the fleet continued south to San Julián, where, in April, surrounded on all sides by the frozen expanse of Patagonia, a full-scale mutiny was launched against Magellan by the captains of the four other ships.

Played out across five vessels, the scenes were chaotic and confusing, but Magellan prevailed. In the ensuing skirmishes, the rebellious captains of the Victoria and the Concepción were arrested and executed. One of the leaders of the revolt was the demoted and resentful Juan de Cartagena. Magellan opted to maroon him on an island, thus avoiding shedding the blood of a powerful nobleman, while also ridding himself of an incompetent troublemaker. Cartagena’s fate is unknown, but other mutineers were pardoned, including one of the officers, Juan Sebastián Elcano.

Shortly after the failed mutiny, as resentments still simmered, Magellan lost the Santiago in a storm. Unbowed, the reduced fleet continued south until glacial conditions forced a halt for two months to provision; then it set out once more. Finally, as Pigafetta records on “the day of the feast of the eleven thousand virgins,” St. Ursula’s Day which falls on October 21, they sighted a strait “surrounded by lofty mountains laden with snow... Had it not been for the captain-general, we would not have found that strait, for we all thought that it was closed on all sides.”

For over a month, buffeted by storms and currents, the fleet ventured down the strait that Charles V would later name for Magellan. The commander named an archipelago they saw on the south side Tierra del Fuego (“land of fire”) in reference to the many bonfires lit there by its indigenous hunter-gatherer peoples, who had occupied this tip of South America for millennia.

In the course of this passage, another ship disappeared: the San Antonio. Pigafetta records it had been believed lost; in fact, it had deserted and was returning to Spain. Equipped now with only three vessels, Magellan and his men “on Wednesday, November 28, 1520, . . . debouched from that strait, engulfing . . . in the Pacific Sea.” They were the first Europeans to enter that vast ocean from its eastern shore.

Hard crossing

After being borne northward along what is today the Chilean coast, Magellan’s fleet finally struck out northwest in search of land beyond. Magellan knew that the Malay archipelago he had visited years before must lie somewhere to the west. To find it, the limping expedition had to sail through rough seas for over three months.

Hunger and disease stalked the crossing. Pigafetta records how he and his crewmates ate sawdust, ox hides, and “biscuit, which was no longer biscuit, but powder of biscuits swarming with worms, and which stank strongly of the urine of rats.” General privation, the lack of food, and illness greatly reduced their numbers. Perhaps the most devastating was scurvy, the distinctive symptoms of which Pigafetta captured: “[I]t was that the upper and lower gums of most of our men grew so much that they could not eat, and in this way so many suffered, that nineteen died.”

Savaged by scurvy

While crossing the Pacific, Pigafetta recorded how many of Magellan’s crew seemed to waste away from a horrific illness: Their gums bled, their limbs ulcerated, and delirium addled their minds. Scurvy and its symptoms, which are caused by a lack of vitamin C, would ravage many European expeditions. The captain who completed the Magellan expedition, Juan Sebastián Elcano, succumbed to scurvy on a later voyage, and it killed an estimated two million sailors between the 15th and 18th centuries. The medical properties of vitamin C were not discovered until the 1920s, but it became common wisdom in the 1700s that citrus fruit could be a preventative, a remedy that was resisted by some in the British Navy. It was not until the 1790s that fruit was distributed routinely among crews. 

On March 6, 1521, after 100 days in Pacific waters, the exhausted armada finally was able to make landfall in the Mariana Islands where they restocked the ships and then continued west. Days later, they reached an archipelago (later christened the Philippines by another Spanish explorer) of many inhabited islands that Magellan would attempt to claim for Spain. The crew celebrated mass on the island of Limasawa in late March and then converted the rulers of Cebu Island to Christianity.

Magellan heard that rivals of the Becu who lived on the nearby island of Mactan refused to convert and submit to Spain. Magellan tried to claim their land for Spain and their souls for the church, but the occupants of Mactan Island, led by the chieftain known traditionally as Lapulapu, stood firm in the face of Spanish guns and swords. On April 27, 1521, Magellan led 60 men to the island with an ultimatum to surrender. The islanders refused, and a fierce battle ensued, which Pigafetta recounted:

When we reached land we found the islanders fifteen hundred in number . . . they came down upon us with terrible shouts . . . seeing that the shots of our guns did them little or no harm [they] would not retire, but shouted more loudly, and . . . at the same time drew nearer to us, throwing arrows, javelins, spears hardened in fire, stones, and even mud, so that we could hardly defend ourselves. 

Pigafetta reported that Magellan was killed by Lapulapu and his warriors on the shore. Despite Spanish firepower, the islanders quickly overcame the invaders with their numbers and bravery and drove them back. The Europeans retreated, leaving their commander to die on the beach; Magellan’s body was never recovered. Later, the king of Cebu would turn against the Europeans, too, and kill 26 of them. The remaining Europeans soon departed.

Their numbers dwindling, the surviving crew, under the command of Juan Sebastián Elcano, did finally reach the Moluccas in November 1521. They were able to stock up the ships with spices and goods to bring back to Spain. Having been forced to abandon two of their three remaining ships, the crew would return to Spain in a fleet of one—the Victoria. Ten months later, the ship and its bedraggled crew of 18, including Pigafetta, entered Seville’s harbor.

Final frontier

The first continuous circumnavigation of the world was complete. It took almost exactly three years and, surprisingly, turned a profit. The 381 sacks of cloves brought back by the Victoria were worth more than all five ships that had set out on the voyage. Despite the hopes and funds invested, it did not translate into immediate meaningful economic benefits for Spain. The treacherous course around the tip of South America was never a practical route for trade with the Moluccas.

Despite the death and destruction brought on by the voyage, many historians believe Magellan’s expedition was a worthy accomplishment. The careful records kept by Pigafetta and others dramatically expanded Europe’s knowledge of the world beyond the Atlantic, giving cartographers a firm sense of the world’s actual size and future navigators intelligence on the conditions and currents of the Pacific Ocean. Europeans had known of the eastern shore of the Pacific since 1513, but Magellan revealed its sheer size and power, knowledge that transformed Europeans’ understanding of the extent of the globe.

Source: National Geographic