On October 28, 1909, Marcelo Susara filed a written complaint in the  Court  of First Instance of this city, against Mariano Martinez, the administrator of the intestate estate of the late Francisco Martinez, who, during his lifetime, was declared incapable of the management of his property, for which reason Attorney Vicente Ilustre was appointed guardian on March  30, 1906.  Upon the death  of the said Francisco  Martinez, on January 21, 1909, the guardian Ilustre ceased to  act and  the said Mariano Martinez was appointed  by the court  as administrator of the  intestate estate left  by the  said Francisco Martinez.   It was alleged in the complaint that, on the said date of March 30, 1906, Ilustre, in his capacity of guardian of the latter, made with the plaintiff a contract of loan  and  of acknowledgment  of a  debt in  favor of  the  plaintiff  for  the sum  of P4,125, secured by the property situated at Nos, 93, 95, and 97 Calle Sevilla, Manila,  owned by the said Martinez; that the said. contract  was embodied in a public instrument executed for the purpose, a copy of which, marked with the letter A, was exhibited with the complaint and made an integral part thereof;  that the said contract was approved by the court on April 3 of the year before mentioned, and that the plaintiff continued to be the legitimate owner of the aforesaid credit and security; that, in accordance with the instrument above referred  to, the  said sum of P4,125 was to be refunded  to the plaintiff within  a term of three years, from the 30th of March, 1906, which term had  expired on March 30, 1909. The complaint further recited that, in accordance with the instrument  before mentioned, the debtor Martinez,  or his representative, was obliged to pay to the  plaintiff annually P367.50 as interest on his debt;  but that neither the debtor nor his representative had, up to the date of the complaint, refunded the said amount and had only paid the plaintiff P244 as interest for the last year, wherefore, it was alleged, that the said  Martinez then owed,  as interest,  P123.50, which, together with the principal to be repaid, amounted to the sum of  P4,248.50; and that, by such failure to pay the  principal and interest, loss and damage was sustained by the plaintiff to the amount of P246.  The latter therefore asked that judgment be rendered in his favor to compel the  defendant  to pay him the total sum of P4,494.50, together with legal  interest thereon from the date of the filing of the complaint  until the amount due should be fully paid, and that, in case of  insolvency, the sale at  public auction of  the property  mentioned be decreed, and that  the net proceeds obtained therefrom be applied  to the payment  of the  judgment.

The instrument, Exhibit A,  shows that Vicente Ilustre, the  guardian of Francisco Martinez y Garcia, party of the first part,  and Marcelo Susara, party of the second part, made  the  following  statements: The former  stated that his ward Martinez y Garcia was the owner of a house and lot situated on Calle Sevilla, Binondo, and designated by the numbers 93, 95, and 97, and that, in  his capacity of guardian and with the approval of the court, he mortgaged the said property by  a special preferred mortgage in favor  of the other contracting party for the sum of P4,125, under the following conditions:  Susara was to  deliver to him, as  in fact he did,  the  sum  of P2,000, for the purposes of the contract; that Marcelo Susara held a credit  against Francisco Martinez of P2,125, verbally acknowledged  by the latter  and previously  affirmed by  a partial payment  on account, as recorded at the foot of the original instrument of the date of July 8,  1903, and subscribed by the debtor, Martinez y Garcia, which document was made a part of the said instrument Exhibit A.  The said credit of P2,125 also constituted  an  encumbrance on  the  property  described, which amount,  together with the P2,000  before mentioned, formed the total  sum of the mortgage.  The said P2,000 was  to  earn  12 per cent  interest per annum and the remainder, P2,125, 6 per cent only, and the term of the mortgage was to be two years,  extendible for another year, at the will of the said party of the first part.   The creditor, Marcelo Susara, stated that he accepted the  contract in all its parts, and the instrument was signed by  both contracting parties on the 30th  of  March, in the presence of two witnesses,  and its contents  were ratified on  the same date before a notary public.  At the end of the instrument appears a note of approval, signed by Judge A. S. Crossfield, under date of April 3, 1906, and bearing the stamp of the court.

Following the said instrument and attached thereto, is a copy of a promissory note, dated July 8,  subscribed by Francisco Martinez,  made payable on the 23d of October of that year to the  order of Marcelo Susara, for the sum of P2,600, value thereof being  acknowledged as  received from the said Susara in jewelry set  with  diamonds, a solitaire ring, and  a  pair of diamond earrings mounted in gold. Under the signature of  the debtor there is  a note which reads: "Paid on  account a  credit of P600."   This note is also  signed by Martinez.

The defendant in his answer  to the foregoing complaint denied paragraphs 8,  9, and 10 thereof and each  and all of their  parts.   These paragraphs refer to the allegations of the plaintiff to the effect that the debtor was obliged to pay  an  annual interest of P367.50; that the former only received P244 as  interest; that the debtor owes him, the plaintiff, for principal and  interest, the sum of P4,248.50 and that the failure  to pay the same  caused  the latter loss and damages to the amount of P246.  As a special defense, the defendant alleged that the question involved was a claim against  the estate of a deceased person, for the settlement of which the court had appointed commissioners in accordance with the law.  He therefore asked that  the complaint be dismissed, with the costs against the plaintiff.

The case having come to trial, with oral evidence  introduced on the part of  the plaintiff, the court, on March 7 of the present year, rendered judgment by dismissing the complaint, without special finding as to costs.  Counsel for the plaintiff filed an exception to the judgment and asked for a new trial, on the ground that the findings were  contrary to the evidence and the law.  This motion was overruled by the court, exception was taken by the plaintiff, the necessary bill  of exceptions was filed on March 31  of the current year, and, in view of the opposition to the approval thereof, entered by  counsel for the defendant upon  the ground that.it  was not  presented in due time - a fact admitted by the plaintiff  the court, holding that the question as to whether the appeal was improperly admitted was one within the competency of the Supreme Court  to decide on motion to dismiss, approved the  said bill of exceptions  and ordered that it be forwarded to  the clerk of this court.

The action prosecuted by Marcelo Susara in the complaint herein above mentioned is unquestionably a mortgage  action and has for its object the collection of a credit secured by real property,  under the provisions of section 254  and following of the Code of Civil Procedure, judging from the nature of the petition made by the plaintiff in his complaint, for he  prays that, in case  of  insolvency in  the  amount claimed, the property alleged as mortgaged be  ordered sold at public  auction and the net proceeds of the  sale applied to the payment of the judgment sought.

The court, after due consideration of the arguments presented by both sides, dismissed the complaint, on the ground that the instrument purporting  to be  a mortgage of  the property situated at Nos. 93, 95, and 97, Calle Sevilla,  district of Binondo, given as security for the fulfillment  of an obligation stipulated therein, does not appear  to be  registered  in the registry of  property, wherefore no mortgage credit legally exists in this case, nor does any action  based thereon lie with the  creditor, but the  latter should  have presented his claim to the commissioners  of appraisal in accordance with the provisions of section 636  and following, of the aforementioned code.

The indispensable requisite of the registration of a mortgage instrument in the registry of property, is expressly prescribed by the  Civil Code  in article 1875 thereof, the first paragraph of which  reads:

"Besides the requisites  mentioned in article 1857, it  is indispensable, in order that the mortgage may be validly constituted, that the instrument by which it is created be entered in the registry of property."

The instrument  of debt, Exhibit A,  which  created the mortgage upon the aforesaid property in favor of the plaintiff, does not appear to be registered in the registry of property, as stated in the judgment appealed from; wherefore it can not be concluded that the said mortgage was validly constituted in accordance  with law so as to enable the creditor, by virtue of the said document, to prosecute an action upon a mortgage, a right of action which could not be derived therefrom because of the failure to register the instrument in the registry of property.

The other kind of security referred, to in section 708 of the Code of Civil Procedure, can not support the prosecution of the action mentioned, because such security can not be held to be a mortgage, and if there is no mortgage it would be impossible to prosecute  the  action.   The proper action may be of a different kind, but it can not be that mortgage action expressly provided by law for the collection of credits secured by a mortgage on real  estate.

With respect to the incidental issue raised in first instance, relative to the alleged improper admission of the appeal by the approval of the bill of exceptions, since that incidental issue was not raised in this second instance by means of the necessary previous motion, before  proceeding further with the appeal, in order that that question might be duly and opportunely decided by this court, it is not possible to pass upon it now, in view  of the statements made in the appellee's brief, and at the same time decide the principal issue, on account of the present status of the  case in this instance where it is no longer permissible either to raise or to argue such a question, owing to the omission or waiver of the party interested.

For the foregoing reasons, it is proper, in  our opinion, to affirm and  we  do hereby  affirm the judgment appealed from, with the costs against the appellant.   So ordered.

Arellano, C. J., Johnson,  Moreland, and Trent, JJ., concur.