Esteban Hinlo and his wife Nicasia Jamandre owed Rufino Tongoy the sum of P2,300.30,  and as security for their debt gave them a mortgage on  a rural property of 30 hectares in area.   Esteban Hinlo died  on May 15, 1890, and Nicasia Jamandre on  June 17,  1897.   Prior to their  death, no suit had been instituted  for  the  recovery of the debt.   These spouses at death left five children, named Agapito, Honorato, Perfecto, Guagerico, and Encarnacion, the eldest of whom, Agapito,  at the time of his mother's death in 1897, was but 19 years 3  months  and 1  day old.  The said  legitimate children of the aforementioned spouses Hinlo and Jamandre were in possession of the said mortgaged agricultural land, and when the payment of the debt was demanded of them, they did not pay it.  On July 20, 1906, Rufino Tongoy sued them for payment and petitioned for the attachment and sale of the mortgaged property.  This suit was filed  in the Court of First Instance of Occidental Negros, and, as during the course of the hearing the plaintiff, Rufino Tongoy, died, the action was continued  by  his widow, Saturnina de Leon, as  the judicial administratrix of the estate of the deceased. At the said hearing, from among those defendants only the girl Encarnacion, then under age, appeared, assisted by a curator ad litem, and the trial was continued in the absence and default of the other four, Agapito, Honorato, Perfecto, and Guagerico.   On May 1, 1907, the court rendered judgment against the  defendants,  directing them  to pay to Saturnina de Leon, as the administratrix of the estate of the deceased Rufino Tongoy, P2,300.30, with legal  interest from the  date of the filing of the complaint and the costs of  the  suit.  On November  4,  1907, the sheriff  sold the mortgaged property at public  auction, and it was adjudicated to the plaintiff's lawyer, Jose Felix Martinez.

On November 6,  1907,  some  work animals, belonging to Agapito Hinlo and  others of  the defendants,  that had been attached by Saturnina de  Leon, were sold at auction by the sheriff.   In  the  return of the sale it  was stated that "the total amount of the said  sale was P2,638 only for the 11 carabaos and 23  cows of  all  kinds as shown in the inventory."   It was  likewise stated  in  the return that, as the amount received from the sale exceeded  that of the  judgment, other animals that  had been attached were not sold and were  returned  to Agapito  Hinlo, and that the sheriff also delivered to the latter  P33.93,  as  surplus  over the amount collected on the judgment.

The foregoing facts are connected with the case decided under No. 168 of the docket.

The following facts are those alleged in the present suit, No. 326, the result of the complaint filed by Agapito Hinlo against Saturnina de Leon and the sheriff for the recovery of possession of the said animals whicfy the latter two parties had attached and sold:  (1) That notwithstanding the protest made and notice of intervention given by Agapito Hinlo to the sheriff, the latter proceeded with the attachment of the said animals, under bond given by Saturnina de Leon; (2) that the attached animals were the personal and exclusive  property  of  Agapito Hinlo,  and not property left by his deceased parents, nor by the latter's heirs; (3)  that on  October 21,  1907, before the  said  animals were  sold, Agapito Hinlo filed  suit to have  them declared to be his exclusive property and  be restored to him,  or should  they be sold that he be paid  their value as well as an indemnity for the resultant loss and damage, and the costs.

These facts of the complaint in  this case  having  been established, the defendant sheriff did not appear to answer the complaint  and was declared in default.   The defendant Saturnina de  Leon  appeared and made a general denial, and as her special defense established the following facts: (1) that against the judgment in case No. 168, the  then defendants, among them the present plaintiff, Agapito Hinlo, did not avail themselves of any of the legal remedies the law grants to  those sentenced by default, and. consented to the judgment,  which on this  account became final;  (2) that,  after the judgment had become final,  the sheriff attached and sold at public auction property that was subject to an execution of judgment;  that Agapito Hinlo, by his acts and in writing,  gave his consent and agreement to the auction sale of the property attached and sold as a result of that execution.

The plaintiff,  Agapito Hinlo, presented as  proof of his exclusive right in the  animals claimed in  this  action of intervention the ownership titles which he possessed;  and, after  the production of oral and documentary  evidence by both  sides, the court rendered its judgment  in which it made, among others, the following findings of facts:

"6.  Thev also attached the carabaos and other cattle specified in the  complaint in this case and  which  were the exclusive and private property of  Agapito Hinlo, acquired subsequent to the death of his parents, as fully proven by the plaintiff's oral and documentary evidence.

"7. It was also proved that the only property which Agapito Hinlo's  parents  left at their  death  were the  thirty hectares of land, and if they left any  carabaos it was not sufficiently proven who  took  control  of  them, for when Agapito Hinlo's parents died all their children were minors, though it  is  probable that the animals died of old age or of' the  first  epidemic of  rinderpest that  occurred  in  this province.

"8. It has  likewise  been proved  that no partition whatever was  made of the estate left  by  Esteban Hinlo  and Nicasia Jamandre, and that  Agapito  Hinlo  has not yet received any share whatever of the inheritance left by his parents; and it was not established by any evidence whatever that  Agapito  Hinlo  and  his brothers and sister  had formally acquired their parents' estate.

"9. The attachment, of  the  private  property of Agapito Hinlo, was therefore arbitrary, especially as notwithstanding the action of  intervention  brought, they sold at auction, (the required bond having been given by Saturnina de Leon as the legal administratrix of the estate of her deceased husband, Rufino Tongoy), eleven carabaos and twenty-three cows  for  the sum  of  P2,638,  returning to  Agapito  Hinlo three carabaos and five head  of cattle, on account of the amount obtained  from the auction sale  exceeding that ordered to be collected in the writ of execution, and an overplus of P33.93.

"The conclusion, then, is that the herein plaintiff, Agapito Hinlo, is the sole owner of the animals attached  and sold, that they never belonged to his parents, and that it was not proved that he inherited anything whatever from the latter at their death."

The judgment was  in plaintiff's favor, the court finding therein that the personal property claimed was the exclusive and private property of Agapito Hinlo, and sentencing, as a result of that finding, Saturnina de Leon, as the administratrix of the estate of the deceased Rufino Tongoy, to pay to Agapito Hinlo the sum of P2,119.26, besides the interest thereon at the rate of 6 per cent per annum since the property was  attached,  that is, since July 16, 1907, for loss and damage, such interest to run until the total reimbursement of the  said sum should be made, and  to pay the costs of the trial.

The defendant Saturnina de Leon appealed, and a bill of exceptions with right to  a review of the evidence having been forwarded to  this court, the following assignments of error were presented by the appellant:

The lower court erred:

1. In admitting evidence on the point as to whether Agapito Hinlo did or did not inherit property from his deceased parents.
2. In admitting  evidence  with respect to whether  the parents of Agapito Hinlo did or did not leave property which the latter inherited.
3. In finding  in its last judgment, that the previous  one rendered  in case No. 168 was  based on the sole testimony of Manuel Lopez.
4. In holding  that the  judgment  rendered by  default against Agapito Hinlo in case No. 168 did not affect this one nor produce against him the effects of res judicata.

Other assignments of error are alleged which are omitted in this decision.

This case concerns a  debt of the spouses Esteban Hinlo and Nicasia Jamandre,  secured by a mortgage on a rural property.

Action was  brought to recover this debt, the rural property mortgaged was attached and, in execution of judgment, sold at public auction, the complaint being filed against  the children of  the  said spouses and  against  whom the trial proceeded by default.

But afterwards other property, not mortgaged, some work animals, was attached.

One of the children claimed these animals as exclusively his own and as property which should not have been included in that execution.

The hereditary succession of the debtors, Hinlo and Jamandre,  was opened in 1890 and 1897, the dates when they each died.

All the children left by these spouses were then  under age, the  eldest of them, Agapito Hinlo, being 19 years old in 1897.

The hereditary succession having been opened in 1897, the date  of the last death, that is, that of Nicasia Jamandre, the rights and obligations contained in the said succession can not be governed by other legislation than that then and now in force, the Civil Code.

In accordance with the principles of the Civil Code, legitimate children are the heirs of their parents, by operation of law.   (Arts. 807, 931.)

But not because a person is an heir of another is he bound to pay the latter's debts; he is only bound to pay them if he accepts the  inheritance; so that the acceptance of the inheritance is what renders the heir liable for the debts of his predecessor in interest.   The acceptance is either pure and simple,  or under benefit of inventory.  (Art. 998.)

"Art.  1003. Through an acceptance, pure and simple, or without benefit of inventory, the heir shall be liable for all the charges on the estate, not only with the  property of the same, but also with his own."

"Art.  1023. The benefit of inventory produces the following effects in favor of the heir:

"1. The heir shall not be bound to pay the  debts and other charges on the inheritance except in so far as the property of the same may go.

"2. He retains against the estate all the rights and actions which he may have had against the deceased.

"3. His private property shall not be confused for any purpose whatsoever, to his injury, with the property belonging to the estate."

"Art. 999.  Pure and simple acceptances may be express or implied.

*      *       *       *       *       *       *

"Implied acceptance is one made by acts which necessarily imply a wish to accept,  or  acts which no one should have a right to execute except in the capacity of an heir.

"Acts of mere preservation, or provisional administration, do not imply  the  acceptance of the inheritance, if, at  the same time,  the title and character of heir have not been assumed."

"Art. 992.  Any person having the free  disposal of  his property may accept or repudiate an inheritance.

"An  inheritance left to minors  or incapacitated  persons may be accepted in the manner prescribed in number 10 of article  269.  Should the guardian accept by himself,  the acceptance should be considered as made under benefit of inventory."

From these provisions it  is inferred:  (1) That  without express acceptance of the inheritance, the children of  the debtor  spouses  can not  be  sued for  the payment of  the latter's debts; (2) that, with respect to the mortgaged rural property, they could, with or without the acceptance of  the inheritance, be  sued in  order that the  mortgage creditor might collect his credit  in  rem by bringing a real action which is  inherent in  a mortgage  right; (3)  that  the  act of possessing,  preserving  and administering  this  rural mortgaged property was a  natural duty of  the  children on the death of their parents, in order  that the creditor's right might not be abandoned and  prejudiced, but this act of  mere preservation and provisional  administration did not imply an  acceptance of the inheritance, inasmuch as thereby they had not assumed the title  or capacity of heirs; (4) that the fact that the said children consented to the judgment in so far  as concerned the  sale of  the property mortgaged by their parents  does not mean that they  also agree to pay  all  shortage  not covered  by the amount realized from  such  sale,  especially  if, besides  the mortgaged property,  they  have  not  received,  preserved, or  administered  other property of their parents'  estate; (5) that if the parents left other property not acquired or accepted as an inheritance by these children, no action can be maintained against the latter  with a view of bringing such property under execution, as they have not contracted any personal obligation  with  regard  to  it,  not  having received it as an inheritance;  (6)  that, in an identical case, judgment  could  only be  enforced  against  them  for the recovery of an amount equal to the  value of the said property, if they  had acquired or accepted it as an inheritance, but not a greater amount, it being unlawful to  levy  upon their own property in execution of judgment, inasmuch as, according to law, since they were minors in 1897, they could receive such  inherited property in  no other manner  than under  benefit of inventory, and the benefit of  inventory is for the purpose of avoiding a confusion of the heir's own property with that of his predecessor in interest which he has inherited.

If under these substantive  provisions of the Civil Code, under  which the mortgage action of the creditor,  Rufino Tongoy, should have been brought,  the  children  of the spouses Hinlo and Jamandre  should only have been called upon to deliver the mortgaged property;  no personal liability whatever rested upon the said children,  as none was transmitted to them; the action brought partaking of the character  of  a real action, greater still, in the light of the provisions of the Code of Civil Procedure, is  the evidence of the  illegal nature  of  the  procedure of extending the mortgage  action  to cover property which in no  wise is shown  to  have been  left  by those debtors, but which appeared  by legitimate and unassailable titles to belong exclusively to Agapito Hinlo; even if it really had been left by the  said debtors,  execution could not have been levied thereon in the manner that it was, against the legitimate protests of its true owner and possessor.

"Mortgage debt due from estate" is the caption of  section 708 of  the Code of Civil Procedure, which provides:

"A creditor holding a claim against the deceased, secured by mortgage or other collateral security, may abandon the security and prosecute his claim before the committee, and share in the general distribution of the assets of the estate; or he may foreclose his mortgage or realize upon his security,  by ordinary action in court, making the executor or administrator a party defendant."

Rufino  Tongoy could choose between  his  personal right and his real right;  he could, by renouncing his real security, present his claim before  the committee  which would  have been appointed in the probate proceeding on the estate of the spouses Hinlo and Jamandre, or he could have brought, in a separate trial, the proper action for the collection of his mortgage credit or to realize upon his security, making the executor or administrator a party defendant.  He chose this  last alternative, but he did not sue an executor or administrator of the estate of Hinlo and Jamandre.

"If there is a judgment for a deficiency,"  continues the section above quoted, "after the sale of the mortgaged premises, or the property pledged,  in the foreclosure or other proceeding to realize upon the security, he may prove his deficiency judgment, before the committee against the estate of the deceased; or he may rely upon his mortgage or other security alone, and foreclose the same at any time, within the period of the statute  of limitations, and  in that event he shall not be admitted as a creditor, and shall receive no share in the  distribution of the other assets of the  estate."

After the sale  of the mortgaged  property, the widow of Tongoy did  not  endeavor to obtain a  judgment  for  the amount which remained unpaid, and she limited her action to a demand that the sheriff attach and  sell the  animals which she supposed to belong to the debtors, and the sheriff attached and sold them,  which acts  of  both parties were entirely illegal.  With the judgment, which it was necessary for her to have previously obtained, she could have applied to the committee  to take  into  account her claim against the estate  as one of the personal credits  against the same; this she  did not do,  but  through the sheriff she continued to enforce the execution  of  the judgment by levying upon some  animals owned by Agapito Hinlo, thus violating the provisions of the law and thereby radically vitiating the proceedings  had,  which were, moreover, an infringement of the particular rights of a third party.

The  judgment appealed from  is,  therefore, perfectly proper and  is hereby  affirmed, with the costs of this instance against the appellant.  So ordered.

Torres, Mapa, Johnson, and Moreland, JJ., concur.