FACTS:On Dec. 29, 1921, Gabriela Andrea de Coster y Roxas and her husband acting as her agent, made to the BPI a certain promissory note for P292,000,payable one year after date, with interest of 9 per cent per annum and payable monthly. In order to secure the payment thereof, Jean M.Poizat and J. M. Poizat and Co. executed a chattel mortgage in favor of the plaintiff on the steamers Roger Poizat and Gabrielle Poizat including the machinery and materials belonging to the Poizat Vegetable Oil Mills. Gabriela Andreade Coster y Roxas and her husband acknowledged and delivered to the plaintiff a mortgage on certain real property lying and being situated in the City of Manila. The real property was subject to a prior mortgage in favor of La Orden de Dominicos or PP. Predicadores de la Provinciadel Santisimo Rosario, hence it is made a party defendant. The promissory is long past due which compel the plaintiff to file an action against the defendants.
The lower court rendered judgment against the defendants GabrielaAndrea de Coster y Roxas, Jean M. Poizat and J. M. Poizat andCo. and made them liable,jointly and severally, for the payment of P292,000, with interest at the rate of 9 per cent per annum starting from the 31st of August, 1923. They are also order to pay P10,000 as attorney’s fees and P2,500 for the insurance upon the steamer Gabrielle Poizat , with interest on that amount starting from February 9, 1924, at the rate of 9 per cent per annum, and costs.
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Then the plaintiff files a petition to the court for a writ of execution. On May 3, 1924, the plaintiff files a motion to declare the defendants in default due to their failure to appear or answer. The court rendered decision in favor of the plaintiffs. On Aug. 26, 1924, Gabriela Andrea de Coster y Roxas, claimed that she had been residing in Paris, France from 1908 until April 30, 1924 and that she only found out about the case from the newspapers. She further claims that she was never given any summons by the sheriff and that her husband exceeded his authority as her agent. She prayed that the judgment to be annulled and set aside. She also prayed that the case be reopened and she be permitted to file an answer so that the case can be tried according to its merits.
• Whether or not proper summons were served.
• Whether or not Jean M. Poizat, husband of the defendant exceeded his authority as an agent of his wife.
• Whether or not the case should be remanded to the lower court.
HELD:With regards to the first issue, the Court held that the summons has not been properly served. In the ordinary course of things when the wife is absent from the residence of husband by reason of pleasure or business, the residence of the wife would continue and remain to be that of the husband. In the instant case, the circumstances warrant otherwise. For fifteen years the residence of the husband was in the City of Manila, and the residence of the wife was in the City of Paris prior to the filing of the complaint and issuance of summons.. There have been no personal service of summon on the defendant as required by the Rules of Court because the publication requirement for serving of summons to persons made party to a case who are residing abroad has not been satisfied.
With regards to the second issue, the Court held that Jean M. Poizat has exceeded his authority as the agent of his wife. It will be noted that there is no provision in power of attorney granted to the husband of the defendant which authorizes or empowers him to sign anything or to do anything which would make his wife liable as a surety for a pre-existing debt. It is fundamental rule of construction that in an instrument where powers and duties are specified and defined, all of such powers and duties are limited and confined to those expressly mentioned therein and all other powers and duties are excluded. It is very apparent from the face of the instrument that the purpose of the power of attorney was to empower and authorize the husband to look after and protect the interests of his wife. But nowhere does it provide or authorize him to make her liable as a surety for the payment of the pre-existing debt of a third person.
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Hence, it follows that the husband was not authorized or empowered to sign the note in question for and on behalf of his wife. Therefore, the note is void for want of power of the husband to execute it. The same thing is true as to the real mortgage to the bank.It was given to secure the note in question and was not given for any other purpose. The real property described in the mortgage was the property of the wife. The note being void as far the wife is concern, it follows that the real mortgage to the bank is also void for want of power to execute it.
On the last issue, the Court held that the case should be remanded to the lower court to give the wife opportunity to file an answer to plaintiff’s cause of action so that the case can be tried according to its merits.