VICENTE M. BATIC vs. JUDGE VICTORIO L. GALAPON JR. A.M. No.

MTJ-99-1239; JULY 29, 2005 (465 SCRA 7) FACTS: This case involves three administrative complaints filed against Judge Victorio L. Galapon, Jr., of the Municipal Trial Court of Dulag, Leyte. In of the A.M. No. MTJ-99-1239, v. Vicente filed Batic on and April 7, 1997, complainant for Grave grave Vicente M. Batic, co-accused in Criminal Case No. 12305 (entitled People Philippines charged to Lualhati graft and Ellert Coercion) respondent best judge with of corruption, that

abuse of authority, gross ignorance of the law, dishonesty and conduct prejudicial the interest the service. claims He respondent issued a warrant of arrest against him and his co-accused in the aforesaid case two days before the complaint was filed. As proof, he attached a warrant of arrest dated March 18, 1997 and a complaint dated March 20, 1997. Batic notarial also charged for respondent a with Deed of engaging Absolute in unauthorized between a practice notarizing Sale

certain Antonio Caamic and Lualhati V. Ellert on January 25, 1990. In A.M. No. MTJ-05-1595, initiated on October 1, 1997 through a letter by complainant Horst Franz Ellert, a French national and husband of Lualhati Ellert, respondent judge was charged with having prepared and notarized one Deed of Sale in the name of Lualhati Ellert, with the document describing the latter as single. Complainant adds that a certain Attorney Custodio P. Caete also notarized another Deed of Sale indicating Lualhati Ellert as single, and that this Atty. Caete, together with his wife and respondent judge are in connivance towards depriving him of his share in their conjugal properties. In complaint A.M. No. MTJ-05-1596, respondent complainant with Horst Franz of the Ellert law, again grave filed on January 11, 1999, this time in the form of an Affidavit, a charging ignorance misconduct and gross negligence in the performance of duties for having prematurely issued and signed a warrant of arrest against his wife and Vicente Batic on March 18, 1997, before a complaint was actually and officially received on March 20, 1997. Respondent explains that on March 17, 1997, the complainants in the aforementioned criminal case brought their statements to him and swore to them before him.The following day, March 18, the police department of Dulag, Leyte, brought the complaint in the same criminal

case

to

respondent then

together to

with

the

supporting before

affidavits.

Complainants

swore

their

complaint

him. Respondent

decided to immediately conduct the preliminary examination because the witnesses resided in a barangay far from the town proper of Dulag and it would be expensive for them to come back on another date. finding After probable cause, he issued an Order on the same day for the issuance of the warrant of arrest for the two accused. However, it was already late in the afternoon so the draft Order and the warrant of arrest could no longer be typed. They were typed the next day. On March 19, 1997, respondent went on leave of absence to attend the graduation of his daughter. March 20, 1997, he signed the Order On together with the warrant and since the draft order was prepared on March 18, 1997 both order and warrant of arrest were dated March 18, 1997. date He then brought the records to the table of the clerk of court, March 20, 1997 marked on the criminal complaint thus only Mr. Blandino Bautista, who stamped on all of them the current date. The signifies the date when the records were received by the clerk of court from him. Regarding his act of notarization, respondent claims that he did not prepare the document and that his participation was limited to its acknowledgment, for which the corresponding fee was collected by and paid to the clerk of court. says that he was constrained to notarize He the document because the only notary public in Dulag, Leyte was not in town and the vendor was compelled to go to him because the vendee was in a hurry. He adds that he at that time sincerely believed that when no notary public is available, the Municipal Trial Courts may act as exofficio notary public, provided the fees shall be for the government. He finishes his argument by saying that now that there are two notaries public in his municipality, he has refrained from notarizing any deed. ISSUE What is the limitation of notarial duties of the judges? : HELD: The notarization of a Deed of Absolute Sale, is disagreed with the findings and recommendation of Investigating Judge that respondent judge should be exonerated.It reasoned that the rule on the power of the MTC and MCTC judges even 1990. It to before cited act the the as notaries of of Borre public ex-officiohas Circular v. No. 1-90 been dated v. 26 established February issuance cases

Moya, and Penera

Dalocanog,wherein the Court ruled that judges are empowered to perform

the

functions

of

notaries

public ex-officio,but

such

authority

is

limited to the notarization of only those documents connected with the exercise of their official functions. added that this instance not It being the first that respondent committed the infraction, having been found in A.M. No. MTJ-00-1294 to have engaged in unauthorized notarial work, he should be fined the amount of Eleven Thousand Pesos (P11,000) WHEREFORE,the Galapon, private Jr. with are DISMISSED . complaints respect to filed the judge against of Judge a Victorio of L. arrest issuance is warrant

However, on the complaints charging notarization of a respondent found GUILTY of unauthorized

document,

notarization of a private document, and hereby ORDERED to pay a FINE of Twenty Thousand PesosP20,000), with a warning that a repetition of ( the same will be punished more severely.

JUDGE GERVACIO A. LOPENA, vs. ATTY. ARTEMIO P. CABATOS AC No. 3441; August 11, 2005 (466 SCRA 419) FACTS: Atty. charged by Artemio Judge P. Cabatos A. (respondent) was administratively of the Municipal

Gervacio

Lopena

(complainant)

Circuit Trial Court (MCTC) of Tagbilaran-Clarin, Bohol of SERIOUS BREACH OF PROFESSIONAL ETHICS and GRAVE MISCONDUCT on the following grounds: 1) Respondent knowingly falsified a Deed of Donation purportedly executed by one Crispina Panis by notarizing the same on June 24, 1981 when the donor had died on January 15, 1981, and 2) Respondent on City, showed a grave 21, in disrespect around to the the courts and the of the his administration of justice by holding, together with his followers, a parade/rally Tagbilaran respondents Acting COMMENT... 1. Claiming that he had been away from his place of birth, Panaytayon, Tubigon, Bohol since 1958, hence, when he notarized the questioned deed of donation, he really did not recognize the person of Cristina Panis, but he was led by one Gregorio Ricafort to believe that the old woman before him at the time he notarized the document was the said Crispina Panis. 2. Respondent informed that his notarization of the questioned document in fact resulted to his indictment in court for reckless imprudence resulting in falsification of public document, which case was pending trial. 3. As for the charge of having conducted a rally/parade, respondent claimed that the same was staged by PDP Laban and BAYAN of Bohol as a protest against complainant who showed bias in presiding over the trial of the criminal cases against members of the Cabatos family and disregarding the evidence in convicting them. On reply to respondents COMMENT, complainant countered that... one of the witnesses to the questioned document was respondents father, Geronimo Cabatos, a permanent resident of Panaytayon who knew as he was related by blood to Crispina Panis, hence, it is incredible for respondent not to know of Panis death on January 15, 1981 or that he did not know the person of Panis even if he had been away from his place of birth since 1958. September directed 1984 principal who cases had and streets denied against three complainant criminal convicted

close relatives on this Courts

applications for probation of two of the convicts. Resolution respondent submitted

Hence, this Court referred the case to the Integrated Bar of the Philippines (IBP) by Resolution of June 4, 1990. Accordingly, the IBP Commissioner on Bar Discipline issued a Notice of Hearing and set forth the date thereof, but not one of the parties showed up. The case was set anew for complainant to present evidence during which, again, none of the parties appeared drawing the Commission to consider the case submitted for resolution. In view of the failure of the complainant to substantiate his serious charges against the respondent, it is respectfully recommended that this charge for disbarment be dismissed. Respondent accordingly prayed for the dismissal of this case. However, the Commission pointed out that even though respondent was exonerated from the criminal case filed against him, the same does not exonerate him from the present administrative case. ISSUES: Whether or not there is serious breach of professional ethics committed by respondent? RULLING: In Flores v. Chua, 306 SCRA 465, that where the notary public is a lawyer, a graver responsibility is placed upon his shoulder by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any. In Nunga v. Viray, 306 SCRA 487, the Honorable Court ruled that notaries public must observe with utmost care the basic requirements in the performance of their duties. That a notary public should not notarize a document unless the persons who signed it are the same persons who executed and personally appeared before him to attest to the contents of the truth of what are stated therein. Respondent having thus failed to faithfully discharge his sacred duties as a notary public, under the facts and circumstances of the case, the revocation of his notarial commission and disqualification from being commissioned as notary public for a period of One (1) Year is in order. As for the charge against respondent of showing grave disrespect to the courts and the administration of justice by holding a parade/rally, along with his followers, during which he imputed bias to complainant whom he branded as worse than President Marcos, it has not been sufficiently substantiated.

WHEREFORE, the notarial commission of respondent, Atty. Artemio P. Cabatos, if still existing, is hereby REVOKED and he is hereby DISQUALIFIED to be commissioned as a notary public for a period of One (1) Year, and WARNED that a similar violation by him shall be dealt with more severely.

MARINA C. GONZALES, vs. ATTY. CALIXTO B. RAMOS, A.C. No. 6649; June 21, 2005 (460 SCRA 352) FACTS: This is a complaint for disbarment filed by Marina C. Gonzales against When Atty. Calixto file B. his Ramos because of the latters lawyer alleged misconduct in notarizing a Deed of Absolute Sale. orderedto Answer, the respondent alleged that Francisco T. Gonzales went to his office, accompanied by a couple, showing a Deed of Sale and requested him to notarize it. The respondent, however, noticed Deed of together that the Deed of Sale did not contain a and technical Gatus, Deed of description of the property being sold, so he prepared another set of Absolute Sale. Thereafter, Francisco with a witness, Ms. Eva Dulay, the spouses the second signed

Absolute Sale in his presence. He then instructed Francisco to bring his wife, herein complainant, to his office so she can sign the Deed of Absolute Sale in his presence. When Francisco returned to his office, he brought with him the Deed of Absolute Sale signed by Marina C. Gonzales. At first, he was hesitant to notarize the document because he did not see the complainant sign the same. He compared the signatures of Marina C. Gonzales on the Deed of Absolute Sale Deed C. with of her other Sale signatures was in his files, the spouses Gonzales being his clients from way back. Convinced that the signature on the complainant ISSUE: Whether RULING: YES. The respondents act of notarizing the document despite the non-appearance of one of the signatories should not be countenanced. His conduct, if left unchecked, is fraught with dangerous possibilities considering the conclusiveness on the due execution of a document that our courts and the public accord to notarized documents. Respondent has clearly failed to exercise utmost diligence in the performance of his functions as a notary public and to comply with the mandates of law. As a lawyer, By respondent notarizing breached the the Code deed, of he Professional engaged in Responsibility. questioned or not respondent was liable for notarizing a Deed of Absolute Sale signed by one of the signatories not in his presence? Absolute Sale. Absolute indeed the notarized signature of the Deed of Marina Gonzales, respondent

unlawful,

dishonest,

immoral

or

deceitful

conduct. He also

committed

falsehood and misled or allowed the Court to be misled by any artifice. WHEREFORE for breach of the Notarial Law and Code of Professional , Responsibility, the notarial commission of respondent is REVOKED and he is DISQUALIFIED from reappointment as Notary Public for a period of two years. He is also SUSPENDED from the practice of law for a period of one year, effective immediately. He is further WARNED that a repetition of same or of similar acts shall be dealt with more severely.

BENILDA M. MADDELA, vs. ATTY. ROSALIE DALLONG-GALICINAO A.C. No. 6491; January 31, 2005 (450 SCRA 352) Statement of Facts: Complainant Benilda Madella is a Clerk in the Office of the Clerk of Court, Regional Trial Court (RTC), Bayombong, Nueva Vizcaya, while respondent Atty. Rosalie Dallong-Galicinao is the Clerk of Court and ExOfficio Provincial Sheriff of the RTC, Bambang, Nueva Vizcaya. In an affidavit-complaint dated 7 February 2003, filed with the Integrated Bar of the Philippines (IBP), the complainant prays for the disbarment of the respondent for acts unbecoming a public servant and a lawyer, grave misconduct and slander. In her affidavit-complaint, the complainant alleged that sometime in July 1999, she received the amount P40,000 from the respondent by of way of a loan at an interest of 5% per month. November 2001, since In part of the loan remained unpaid, the respondent went to complainants office and took complainants cash gift check amounting to in P5,000 her absence and without her knowledge. There, the respondent uttered unsavory and humiliating words against her (the complainant) bang and her fist on top of the complainants table, causing the glass top of the table to break. To privilege complaint support to of her bid the to have the respondent of 3 law, stripped the of the practice one noble profession dated complainant opposing the

attached to her affidavit-complaint a copy of a confidential letterBenjamin Rilloraza May 2001, respondents admission to the Bar in view of her acts of notarizing documents outside the area of her commission. Rilloraza claimed Mr. that the respondent, although not yet a lawyer, was issued a notarial commission for Kayapa or (Kasibu), Nueva Vizcaya. However, the respondent notarized documents in Bayombong, Nueva Vizcaya, outside the area of her commission. Anent the allegation that she notarized documents in Bayombong, Nueva Vizcaya, outside of the area of her commission, the respondent explained that she did it to accommodate the parties thereto, who were her relatives, and that she did not derive profit from such act. To prove the claim of the respondent, she presented an affidavit of Mr. Josue B. Liclican dated 10 March 2003 stating that he is the creditor of the complainant and she merely brokered the loan agreement and acted as a guarantor in favor of the complainant. Mr. Liclican also claimed that by reason of complainants failure to pay her obligation

after the lapse of more than four years, he tried to collect the loan from the respondent, who acted as a guarantor. ISSUE: Whether or not the respondent is allowed to notarize outside the

area of her commission? ANSWER: NO. Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. The protection of that interest and into necessarily the a requires that those in that not qualified It must or be in authorized to act must be prevented from imposing upon the public, the courts, document administrative public document, offices making general. document underscored that the notarization by a notary public converts a private admissible evidence without further proof of the authenticity thereof. Whether the respondent derived profit from her act of notarizing outside the area of her authority is of no moment. The fact remains that she notarized outside the area of her commission. The penalty of fine would be a sufficient sanction. HOLDING: WHEREFORE the Court hereby MODIFIES the resolution of the IBP , Board of Governors and hereby imposes on respondent ATTY. ROSALIE DALLONG-GALICINAO a fine of Ten Thousand Pesos ( P10,000) for misconduct as a notary public.

VICTORINO SIMON, vs. JUDGE ALIPIO M. ARAGON AM No. MTJ-05-1576; Feb. 3, 2005 ( SCRA 414) 450 FACTS: Victorino Simon charged respondent, Judge Alipio M. Aragon, the presiding judge of the Municipal Circuit Trial Court of San Pablo and Cabagan, alleged Isabela, that the he with conduct in and unbecoming of an of officer.Complainant practice having private documents, engaged unauthorized notarial

undertaken

preparation

acknowledgment

contracts and other acts of conveyances without direct relation to the performance of his functions as a member of the judiciary. Judge admitted that he notarized the documents but explained that he was constrained to do so as there was no lawyer or notary public in San Pablo, Isabela from 1983 to 1992. clarified that, upon learning He of Circular No. 1-90 sometime in 1993, he immediately and voluntarily desisted from further notarizing private documents. further claimed He that he never profited from his acts of notarization since the parties paid the notarial fees with the Office of the Municipal Treasurer of San Pablo Issue: Whether or not an MTCT Judge can notarized private documents where no lawyer or notary public is available? HELD: Circular No. 1-90 specifically delineates the power of Municipal Trial Court judges and Municipal Circuit Trial Court judges to act as notaries public ex-officio. However, for MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public to validly perform any act of a regular notary public, two requisites must concur: 1. All notarial fees charged must be for the account of the Government and turned over to the municipal treasurer; and 2. Certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. The court finds the respondent judge guilty of engaging in unauthorized notarial work without complying with the requirement of certificationas to lack of a notary public within his municipality or circuit. The respondent judge was fined the amount of One Thousand Pesos (P1,000.00) for unauthorized notarization of a private document.

ELEMAR G. BOTE, vs. JUDGE GEMINIANO A. EDUARDO. 451 SCRA 9 FACTS: Herein petitioner together with his wife bought a parcel of land. Although full the Deed of Sale After had already been prepared, obligation, the it the was not immediately delivered to the spouses because they have yet to pay the purchase the price. Deed settling their seller Judge filed delivered March 19, for notarization. civil However, respondent

erroneously dated the notarized document to March 19, 1985 instead of 1986. As a result, and criminal charges were against the petitioner, and a warrant was issued for his arrest. Over rectify was the the years, petitioner made many requests on the respondent same. by A to

error, but the latter but was likewise denied

merely ignored by the

final a

demand letter with an attached certified copy of the notarial register sent, respondent issuing certification that the Deed was really notarized on March 19, 1985. Thus, the petitioner filed the instant administrative complaint against the respondent for serious neglect of duty and grave misconduct for his malicious refusal to correct such error, presenting the certification on the entry in the notarial register that such Deed was notarized on March 19, 1986. On another hand, the respondent argued that the Deed was the best evidence of the date of notarization and that the Court need not look at the notarial registry. questioned the entry in the notarial He registry, stating that it was of doubtful veracity because it was not in his was him. On November 18, 2003, the Office of the Court Administrator issued its findings declaring respondent administratively liable. In its Memorandum the OCA recommended that a fine P10,000 be imposed , of upon respondent, to be deducted from his retirement benefits. ISSUE: Whether or not the respondent Judge is negligent and is liable therefore. handwriting. not in his He surmised that and one that of his the parties was to the deed of inserted the purported date of execution as September 16, 1985 since it handwriting, clerk responsible filling-out dates in documents and entries in the notarial register for

RULING: YES. erroneous The Court that held the that respondent of is Judge the is liable of borne for the by his Court the

notarization.

The

findings

Office were

Administrator

respondent

negligent

records. The Deed was prepared in 1985. Based on the records, the CTCs of both parties to the Deed appeared to be on September 16, 1985, which was already six months after the Deed was allegedly notarized by the respondent as claimed by him. It was further proven that the Deed was entered on March 19, 1986 in the notarial register. Respondent claimed that he notarized the deed on March 19, 1985. However, he could not have possibly notarized was the deed, with the vendors is residence certificates date of issue already typewritten, six months before the residence certificate issued. More convincing complainants assertion that respondent notarized the deed on March 19, 1986, except that in filling in the date of notarization, respondent did not notice that the year 1985 was already typed in.A notarial registerprima is a facie evidence of the facts stated therein. It has the presumption of regularity and to contradict the veracity of the entry, evidence must be clear, convincing, and more than merely preponderant. Here, respondent had not been able to successfully assail the veracity of the entry. He contended that it was not in his handwriting, but he himself had declared that his clerk made the entries in the register for him, thus revealing why the entry was not in his handwriting. The respondent was also negligent when he notarized the Deed with unfilled spaces, making uncertified and fraudulent insertions easy to accomplish. Notarization is not an empty, meaningless, routinary act.is invested with such It substantial document public a interest that only making those that who are qualified admissible or in authorized may act as notaries public. Notarization converts a private into public document, document evidence without further proof of its authenticity. this reason, For notaries must observe with utmost care the basic requirements in the performance of their duties. Otherwise, the confidence of the public in the integrity of this form of conveyance would be undermined. Respondents lack of due care in the performance of his delicate task as ex officionotary public clearly rendered him administratively liable. Nonetheless, the Court could not agree with the OCAs recommended penalty. Even considering that respondent consistently

refused to recognize his error after he has been informed of it, the Court believes that respondents infraction would not warrant a stiff

fine of P10,000. Rather, considering the circumstances, a fine of P5,000 would have we been find in to more that impose appropriatefor respondent case, any for simple negligence.On away on a reasons,we of record, June find 11, it however, already passed

2001.Thus,

this

humanitarian

inappropriate

administrative

liability

punitive

nature. Even a fine lower than that recommended by OCA, in our view, could no longer be imposed under the circumstances of this case. OCAs recommendation was contained in its finding of administrative liability only on November 18, 2003, a year and a half after respondents demise. As well said in Apiag v. Judge Canteroinvolving also gross misconduct , and neglect, [f]or such conduct, this Court would have imposed a penalty. But in view of his death prior to the promulgation of this Decision, dismissal of the case is now in order. It behooves us now to declare the instant complaint DISMISSED, CLOSED and TERMINATED.

EPIFANIA DELA CRUZ, substituted by LAUREANA V. ALBERTO, vs. SPS. EDUARDO C. SISON AND EUFEMIA S. SISON. 451 SCRA 754 FACTS: Herein petitioner claimed that sometime in 1992, she discovered that her She rice filed land a has been transferred declare and registered of Sale in the name of her She nephew, the respondent in this case, without her knowledge and consent. complaint to the Deed null and void. alleged that the respondent tricked her into signing the purported Deed of Sale by inserting such among the documents she signed pertaining to the transfer of her residential land, house, and camarin in favor of Demetrio, her foster child and the brother of Eduardo. The respondent denied that they employed fraud and trickery in the execution of the said document. They further averred that petitioner could not have been deceived into signing such document because it was duly notarized and they have complied all the necessary requisites for its registration. They also pointed out that some of the documents bore the signature of the petitioner herself, proving that petitioner agreed to the transfer of such property. Moreover, respondents asserted that they have been in open, continuous, and peaceful possession of the land since November 24, 1989, and have been receiving its fruits as corroborated by the caretaker of the property. Adversely, petitioner claimed that she is unable to read and understand the English language used therein; thus, respondents failed to comply the requirement laid down under Art. 1332 of the New Civil Code that When one of states, the parties is unable to read, or if the contract is in a language not understood by him, and mistake or fraud is alleged, the person enforcing the contract must show that the terms thereof have been fully explained to the former . ISSUE: Whether or not the Deed of Sale is null and void. RULING: The Court held that the Deed of Absolute Sale dated November 24, 1989 is VALID. The petitioner did not satisfactorily establish her inability to read and understand the English language. During her testimony, Epifania insisted that she cannot read, but her avowal is inconsistent with her own complaint by alleging that she only read the document on top of the other several copies and found the same to be the deed in favor of Demetrio and

being made to believe by Eduardo C. Sison that the other copies are the same as the deed in favor of Demetrio C. Sison, she signed all the other copies that Eduardo made her sign. To us, these contradictory statements do not establish the fact that Epifania was unable to read and understand the English language. Thus, there is no enough evidence adduced to support her claim. It is well settled that a party who alleges a fact has the burden of proving it. Hence, Art 1332 does not apply. Although she was 79 years impair mental their old he at the time the execution as to of the contract, her Court. she her age did not and mental faculties when she if, hinder in from It did properly is not

intelligently protecting her rights. Even at the age of 83, she exhibited astuteness contents, testified as she therefore, direct the inconceivable for her to sign the assailed documents without ascertaining especially alleges, respondent to prepare the same. In addition, the questioned document was duly notarized. It is a

settled rule that the one who denies the due execution of a deed where ones signature appears has the burden of proving that one never appeared before the notary public and acknowledged the deed to be a voluntary act. Epifania never claimed her signatures as forgeries. In fact, she never questioned the deed of sale in favor of Demetrio, accepting it as a valid and binding document. Hence, we apply the rule that documents acknowledged before notaries public are public documents which are admissible in evidence without necessity of preliminary proof as to their authenticity and due execution. They have in their favor the presumption of regularity, and to contradict and more the same, mere there must be evidence The that of is clear, to convincing than preponderant. burden proof

overcome the presumption of due execution of a notarial document lies on the one contesting the same. Petitioner failed to discharge this burden. We uphold the findings of the Court of Appeals that the series of official acts and processes leading to the transfer of the tax declaration in the name of Eduardo lend credence to the due execution of the questioned deed of sale. The testimony the of Municipal of Agrarian to Reform sell Officer her land Erlinda to the Lomibao demonstrates intent Epifania

former. According to Lomibao, both Epifania and Eduardo appeared before her twice to facilitate the issuance of the clearance over the transfer of the said property as shown in the DARs log book where both their names and signatures appeared as written one after the other. These overwhelming documentary evidence presented by the respondents prove that the spouses Sison bought the property from Epifania.

ADELINA GUERZON BARCENAS, MAXIMO T. GUERZON SR., MARINA T. GUERZON, GABRIEL T. GUERZON, and ROWEL T. GUERZON, in their Capacity as Heirs to VERONICA TOLENTINO, vs. SPOUSES ANASTACIO TOMAS CANDIDA CALIBOSO. and GR. No. 150321 , March 31, 2005 (454 SCRA 754) The Facts A case for recovery of ownership and possession of real property with damages was filed by Respondent Spouses Anastacio Tomas and Candida Caliboso against the heirs of Veronica Tolentino. The Complaint stated, among others, that after the death of her husband, Benedicto Guerzon, Veronica sold to respondents on May 7, 1969, a one-hectare portion of her undivided share in a 14.6-hectare property. Situated in Barangay Paitan Sur, Cuyapo, Nueva Ecija, the land was co-owned by her and her ten children. The entire property was registered in her name and that of her late husband and covered by Transfer Certificate of Title No. 16390. Respondents took possession of the property immediately after the sale. In 1989, On however, 13, the 1989, couple the migrated heirs of to the United States, an leaving the lot in the possession of Victoriano Tomas, the husband's brother. April Veronica executed Extrajudicial Partition covering the entire property. As a result, a new title was issued in the name of one of the heirs, Maximo Guerzon, who in 1995 wrested possession of the lot from Victoriano Tomas. During the trial, respondents presented a Deed of Sale (Exhibit "B") evidencing the sale of the one-hectare lotP2,800. Moreover, an for Affidavit (Exhibit "C") showed that Veronica's children had subsequently confirmed the sale. Petitioners, however, denied knowledge of the two documents and claimed that their signatures on the Affidavit had been forged. Ruling that respondents had the better right of possession and ownership of the land in question, the Municipal Trial Court of Cuyapo, Nueva Ecija held that the sale of the one-hectare portion to them had sufficiently been established by the notarized document of sale and by their continuous by possession Maximo of the in property 1995. The from MTC 1969 added until that its the interruption Guerzon

authenticity and genuineness of the Deed of Sale, as well as of the Affidavit confirming it, could not be assailed by mere unsubstantiated denials that the documents were fake. It ordered the defendants to vacate the property immediately and to pay moral damages, litigation expenses, attorney's fees and the costs of the suit.

On appeal, the Regional Trial Court, Branch 33, of Guimba, Nueva Ecija affirmed the MTC Decision. Petitioners thereafter elevated the case to the CA under Rule 42 of the Rules of Court. As merely earlier referred stated, to the CA as dismissed the the of Petition Veronica for Review because of the following procedural infirmities: (1) petitioners had themselves "Heirs Tolentino," instead of stating their full names as required under Section 2(a) of Rule 42; (2) the pleadings filed with the lower court had not been appended to the Petition, contrary to Section 2(d) of Rule 42; and (3) among ISSUE: Petitioners ask the Supreme Court to (1) to set aside the CA Resolution "in the interest of substantial justice"; and (2) to review and reverse the RTC and the MTC Decisions, despite the fact that the CA did not pass upon them on their merits. The Court's Ruling First Issue:Dismissal Due to Procedural Defects (Petition Defective in Form) A review of the Petition for Review easily confirms the defects adverted to by the CA in its assailed October 11, 2001 Resolution. In the title of the Petition, petitioners referred to themselves merely as the "Heirs of Veronica Tolentino," without stating their full names or the fact that they were represented by Adelina Guerzon Barcenas. This lapse runs counter to the requirement of Section 2(a) of Rule 42, especially because the deficiency could not have been offset by the equally incomplete attachments. Petitioners do not deny that the pertinent pleadings and portions of the record in support of their allegations were not attached to the Petition as required by Section 2(d) of Rule 42. They attribute this procedural lapse to personal shortcomings, as well as to the purported unwillingness of lower court personnel to provide the needed documents. No proof was adduced to validate these excuses, however. Worst of all, only Adelina signed the Verification and the Certification of non-forum shopping. She did so despite her admission that, among petitioners, she was the only signatory; and despite the absence of proof that she had authority to sign for the others. Loquias v. Office of the Ombudsman has categorically declared that where there are two or more petitioners, a petition signed by only one of them is defective, unless such signatory has been duly authorized by the copetitioners, only one had signed the Verification and the Certification of non-forum shopping.

parties

to

represent

them

and

to

sign

the

certification.

For

that

matter, the Court notes that the Special Power of Attorney in Adelina's favor was executed only on November 14, 2001, when the CA Resolution was appealed by certiorari to this Court. It was therefore not intended for the subject CA Petition. Admittedly, all the infirmities besetting the Petition before the CA affected only its form. In appropriate cases, they have been waived to give the parties a chance to argue their causes and defenses on the merits. To justify the relaxation of the rules, however, a satisfactory explanation and a subsequent fulfillment of the requirements have always been required. Unfortunately, petitioners have not given any reasonable justification for liberalizing the rules here. As pointed out earlier, because they had not moved for a reconsideration of the CA Resolution -for which they cited no reason -- they were not able to show reasonable diligence in subsequently complying with the requirements. They must be reminded that except for the most compelling grounds, procedural rules must be strictly complied with to facilitate the orderly administration of justice. Petitioners are required by the Rules of Court to provide appellate courts with certified true copies of the judgments or final orders that are the subjects of review, as well as the material portions of the record. The reason for such requirement is that these documents and pleadings are needed by the reviewing courts in resolving whether to give review due of course cases to on petitions. the merits, Hence, this requirement appellate cannot courts be of perfunctorily ignored or violated. Failure to comply with it hinders the deprives the definitive bases for their actions, results in frustrating delays, and contributes havoc to the orderly administration of justice. Second Issue: Review of RTC and MTC Decisions (Subject of Appeal) Section 1 of Rule 45 clearly states that the following may be appealed to the Supreme Court through a petition for review by certiorari: 1) judgments; 2) final orders; or 3) resolutions of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or similar courts, whenever authorized then, by law. The could appeal have must involve the only RTC questions of law, not of fact. Procedurally petitioners appealed Decision affirming the MTC (1) to this Court on questions of law only; or (2) if there are factual questions involved, to the CA -- as they in fact did. Unfortunately for petitioners, the CA properly dismissed their

petition for review because of serious procedural defects. This action foreclosed their only available avenue for the review of the factual findings of the RTC. Finally, to satisfy he incessant call of petitioners for a factual review, the Court -- despite the foregoing invocations -- nonetheless looked over the records. It found no adequate basis for their claims. We shall now run through the issues. First the evidence did not show that petitioners had presented , strong, complete, and conclusive proof that the notarized Deed of Sale was false. Without that sort of evidence, the presumption of regularity, the evidentiary weight conferred upon such public document with respect to its execution, as well as the statements and the authenticity of the signatures thereon, stand. Second no evidence was presented to establish the fact that the , Affidavit confirming the sale (Exhibit "C") had been forged. Forgery cannot be presumed. Whoever alleges it must prove it by clear and convincing evidence. Third the sale of the undivided share of Veronica Tolentino was , valid even without the consent of the other co-owners. Both law and jurisprudence have categorically held that even while an estate remains undivided, aliquots very much or co-owners undivided have each full may ownership therefore of of their respective assign or her shares ideal and alienate,

mortgage them. Here, the one-hectare portion sold to respondents was less than the share Tolentino consisting of conjugal partnership share of one half of the 14.6-hectare lot (or 7.3 hectares) plus her equal share of 1/11 (0.66 hectare) of the other half. In sum, the Court has bent over backwards and patiently given this case more than adequate review and found absolutely no basis to reverse or modify the Decisions of the three lower courts. WHEREFORE , the Petition is DENIED and the assailed Resolution AFFIRMED. Costs against petitioners.

SPOUSES BENJAMIN SANTUYO AND EDITHA SANTUYOATTY. EDWIN A. HIDALGO. , vs. A.C No. 5838, January 17, 2005 (448 SCRA 282) The Facts Complainants stated that sometime in December 1991, they purchased a parcel of land covered by a deed of sale. The deed of sale was allegedly notarized by respondent lawyer and was entered in his notarial register as Doc. No. 94 on Page No. 19 in Book No. III, Series of 1991. Complainant spouses averred that about six years after the date of notarization, they had a dispute with one Danilo German over the ownership of the land. The case wasestafa through falsification of a public document. During the trial of the case, German presented in court an affidavit executed by respondent denying the authenticity of his signature on the deed of sale. The spouses allegedly forged his notarial signature on said deed. According to complainants, respondent overlooked the fact that the disputed deed of sale contained all the legal formalities of a duly notarized document, including an impression of respondents notarial dry seal. Not being persons who were learned in the technicalities surrounding a notarial act, spouses contended that they could not have forged the signature of herein respondent. They added that they had no access to his notarial seal and notarial register, and could not have made any imprint of respondents seal or signature on the subject deed of sale or elsewhere. In his answer to the complaint, respondent denied the allegations against him. He denied having notarized any deed of sale covering the disputed property. According to respondent, he once worked as a junior lawyer at Carpio General and Jacob Law Office where he was asked to apply for a notarial commission. While he admitted that he notarized several documents in that office, these, however, did not include the subject deed of sale. He explained that, as a matter of office procedure, documents underwent scrutiny by the senior lawyers and it was only when they gave their approval that notarization was done. He claimed that, in some occasions, the secretaries in the law firm, by themselves, would affix the dry seal of the junior associates on documents relating to cases handled by the law firm. Moreover, respondent stressed that an examination of his alleged signature on the deed of sale revealed that it was forged; the strokes were smooth and mild. for forging his signature. He suspected that a lady was responsible

To

further

refute

the

accusations

against

him,

respondent

stated

that, at the time the subject deed of sale was supposedly notarized, on December 27, 1991, he was on vacation. He surmised that complainants must have gone to the law office and enticed one of the secretaries, with the concurrence of the senior lawyers, to notarize the document. He claimed he was a victim of a criminal scheme motivated by greed. The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. In a report it submitted to the Court, the IBP noted that the alleged forged signature of respondent on the deed of sale was different from his signatures in other documents he submitted during the investigation of the present case. However, it ruled that respondent was also negligent because he allowed the office secretaries to perform his notarial functions, including the safekeeping of his notarial dry seal and notarial register. ISSUE: Whether or not the Notary Public is held liable for his actions under the notarial law. The Courts Ruling YES. Considering that the responsibility attached to a notary public is sensitive, respondent should have been more discreet and cautious in the execution of his duties as such and should not have wholly entrusted everything to the secretaries; otherwise he should not have been commissioned as notary public. For having wholly entrusted the preparation and other mechanics of the document for notarization to the secretary there can be a possibility that even the respondents signature which is the only one left for him to do can be done by the secretary or anybody for that matter as had been the case herein. As it is respondent had been negligent not only in the supposed notarization but foremost in having allowed the office secretaries to make the necessary entries in his notarial registry which was supposed to be done and kept by him alone; and should not have relied on somebody else. WHEREFORE respondent Atty. Edwin A. Hidalgo is hereby found GUILTY , of negligence in the performance of his duties as notary public and is hereby SUSPENDED from his commission as a notary public for a period of two years, if he is commissioned, or if he is not, he is disqualified from an appointment as a notary public for a period of two years from finality of this resolution, with a warning that a repetition of similar negligent acts would be dealt with more severely.

DECS vs. DEL ROSARIO G.R. No. 146586. January 26, 2005 (449 SCRA 299) FACTS: On Rosario, 14 February 1992, respondents and the Julia Heirs of Del of Rosario, Santos Maria Del Del Pacencia against Del Rosario Rosario and

(respondents) filed before the trial court a complaint for Recovery of Possession petitioner Department Education, Culture Sports (DECS). Respondents alleged that they own a parcel of land with an area of 1,181 square meters (Property) situated in Kaypombo, [4] Sta. Maria, Bulacan. The Property was registered in 1976 in the name of respondents under Transfer Certificate of Title No. T-222432 of the Bulacan Register of Deeds. Respondents alleged that the Kaypombo Primary School Annex (KPPS) under DECS was occupying a portion of the Property through respondents tolerance and that of their predecessorsin-interest. Respondents further alleged that KPPS refused to vacate the premises despite their valid demands to do so. Isaias del Rosario went to his house of Atty. Eli Natividad and told him that he wanted to have a primary school in their place as he saw the plight of small school he is then existing was pupils in very far their from place; that their place the elementary and Isaias del

Rosario wanted to have a primary school to help these pupils and that willing to donate a portion of the questioned lot for school Atty. Eli Natividad, testified that he prepared the deed of by the in municipality the office of of Sta. the Maria, Bulacan and the through a site, that was

donation which was signed by Isaias del Rosario in his residence which accepted resolution signed secretary municipal

mayor; that a copy of said resolution could not be found due to the transfer of the municipal hall from the old to the new building. Atty. Natividad who is now a testified that he prepared and Judge and witness of the DECS the deed of donation. He notarized

further testified that there was a municipal council Resolution, signed in the Office of the Secretary and of the Mayor, accepting the donation and expressing gratitude to the donor. He furnished the municipal government, the DECS Division Office of Bulacan and the clerk of court of Sta. Maria a copy of the deed of donation. DECS allegedly made a search in the municipal building and in the DECS Division Office in Bulacan. The copies of the deed of donation furnished these to offices new were purportedly as lost the when Court these of offices transferred locations.However, Appeals

correctly pointed out, Judge Natividad who claimed to have notarized the deed of donation failed to account for other copies of the deed, which the law strictly enjoins him to record, and furnish to other designated government offices. ISSUE: RULING: In admitted the in absence court as of Primary as evidence is a the secondary to evidence the is due long there witness prove Whether not retaining a copy of a notaries document by notary public effect the validity of document?

execution of the Deed of Donation. Resolution dated 29 December 2000 of the Court of Appeals in CA-G.R. CV No. 43929 reversing the decisions of lower court and issuing a decision in favor of the heirs of Del Rosario, DECS fail to prove that they exceeded effort to locate the lost document and DECS should have produced at the trial the notarial register where Judge Natividad as the notary public should have recorded the deed of donation. Alternatively, DECS should have explained the unavailability of the notarial register. Judge Natividad could have also explained why he did not retain a copy of the deed of donation as required by law. As the Court of Appeals correctly observed, there was no evidence showing that DECS looked for a copy from the Clerk of Court concerned or from the National Archives. All told, these circumstances preclude a finding that DECS or the Municipality made a diligent search to obtain a copy of the deed of donation. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. Preponderance of evidence means that the evidence as a whole adduced by one side is superior outweighs to that of the of other. In the other words, party. This preponderance Court is of evidence means the greater weight of the evidence - or evidence that the evidence adverse not satisfied that the evidence on the side of the party carrying the burden of proof is of preponderating weight. Much as we sympathize with the plight of the schoolchildren, we do not find reversible error in the Decision of the Court of Appeals. We cannot grant the relief DECS is seeking and disregard existing laws and jurisprudence. DECS, however, is not without remedy. The government can expropriate at any time the Donated Site, paying just compensation to respondents. WHEREFORE we DENY the petition. The Decision dated 25 September , 2000 and the Resolution dated 29 December 2000 of the Court of Appeals in CA-G.R. CV No. 43929 are AFFIRMED.

ATTY. MINIANO B. DELA CRUZ ATTY. ALEJANDRO P. ZABALA vs. 442 SCRA 407 November 17, 2004 Facts: Complainant averred that he was retained by a certain Demetrio C. Marero to finance and undertake the filing of a Petition for the Issuance of a Second Duplicate Original of the Owners copy of Original Certificate of Title (OCT) No. 4153, in the names of Sps. Pedro Sumulong and Cirila Tapales. On May 20, 1997, complainant purchased the said property from Marero and had the title transferred a certain to him and his wife. The and next Mr. day, Nestor complainant requested Mrs. Adoracion Losloso

Aguirre to register the title in the complainants name at the Assessors Office of Antipolo City. However, they were unable to do so because the property was already registered in the name of Antipolo Properties, Inc. On May 27, 1997, respondent Zabala notarized a Deed of Absolute Sale over the same land, executed by Cirila Tapales and Pedro Sumulong in favor of the complainant and his wife. Mr. Marero filed a Complaint for Reconveyance of Title of the land, subject same of the Deed Marero of of Sale which he was filed before notarized a the by respondent, for City Estafa with thru damages against the complainant and his wife. Deed of Sale was the The document used when complaint Quezon Falsification Public Document Prosecutors

Office and in disbarment against the complainant. To clear his name, complainant filed this complaint for disbarment against respondent. According to complainant, respondent notarized an irregular document where one of the parties to the transaction was already dead, grossly violating his oath as a notary public. Respondent, in his Answer alleged that as a notary, he did not have to go beyond the documents presented to him for notarization. In notarial law, he explains, of the the minimum parties requirements and their to notarize of a document are the tax presence presentation their community

certificate. As long as these requirements are met, the documents may be notarized. Furthermore, he adds, when he notarized the Deed of Sale, he had no way of knowing whether the persons who appeared before him were the real owners of the land or were merely poseurs. Issue: Whether or not Atty. Alejandro P. Zabala was negligent in his conduct as a notary public.

Ruling: A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and the truth of what are stated therein. These acts of the affiants cannot be delegated because what are stated therein are facts they have personal knowledge of and are personally sworn to. Otherwise, their representatives names should appear in the said documents as the ones who executed the same. The function of a notary public is, among others, to guard against any illegal or immoral arrangements. By affixing his notarial seal on the instrument, document proclaimed he a to converted public world the the that Deed (1) of all Absolute so, the Sale, from in a private into document. doing In respondent, parties effect, personally

therein

appeared before him; (2) they are all personally known to him; (3) they were the same persons who executed the instruments; (4) he inquired into the voluntariness the is same. As of a execution before lawyer to of the that his instrument; they to be a and (5) and they freely faithful acknowledged executed respondent personally mandated or him voluntarily notary with duties is

commissioned

public,

discharge put,

sacred

observance and utmost respect for the legal solemnity of an oath in an acknowledgment upon him, he jurat. Simply now such responsibility incumbent of his must accept the commensurate consequences

professional indiscretion. His act of certifying under oath an irregular Deed of Absolute Sale without ascertaining the identities of the persons executing the same constitutes gross negligence in the performance of duty as a notary public. The IBP noted that on its face, the Deed of Sale was not executed by the purported vendee and that only Pedro Sumulong appeared and executed the deed even though the property was co-owned by Pedro Sumulong and Cirila Tapales. addition, a copy of the title was not attached to In the ease said with Deed which of Sale when it was presented are for notarization. these The aforementioned circumstances should have alerted respondent. the Given community tax certificates obtained days, respondent should have been more vigilant in ascertaining the identity of the persons who appeared before him. WHEREFORE, this Court finds respondent Atty. Alejandro P. Zabala GUILTY of gross negligence in his conduct as a notary public. His notarial commission, if still existing, is hereby REVOKED and he is DISQUALIFIED from being commissioned as a notary public for a period of two (2) years.

SOCIAL SECURITY COMMISSION, ATTY. NAPOLEON CORRAL. vs. 400 SCRA 291 FACTS : Social Security Commission (hereafter the Commission, for brevity) sought to disbar respondent Atty. Napoleon Corral for preparing, notarizing, and filing with the Commissions Regional Office in Bacolod City two complaints allegedly executed and verified by people who have been long dead. The Commission alleged that respondent filed the first spurious complaint on April 18, 1986, on behalf of one Hermogenes Bareno. The complaint was signed by respondent himself, but appeared to have been verified by Bareno with a thumbmark and acknowledged before respondent on April 16, 1986. Later, upon investigation, it was discovered that Bareno had died two years earlier. The second spurious complaint, for its part, was filed on September 10, 1987, on behalf of one Domingo N. Panadero, under similar circumstances. The complaint was likewise signed by respondent himself and likewise appeared to have been verified by Panadero with a thumbmark and acknowledged before respondent shortly prior to filing. When this complaint was investigated, it was discovered that Panadero had also died long before. In his Comment, had respondent Social argued that since Hermogenes (SSS) Barenos impostor Barenos Security System card, Do mingo

Panaderos impostor had Panaderos SSS FORM E-1, and Catalino de la Cruzs impostor had an ID, he could not be faulted for not investigating further into their identities. argued he had sufficiently complied He with his obligations as notary public when he relied only on what they had pre sented, especially since they sought only the preparation of simple, but justified, complaints for remittance of unpaid SSS premiums ISSUE : Whether disbarment? RULING: The death certificates presented show that both Bareno and Panadero had long been dead, while de la Cruzs unrebutted affidavit proves he had never been to Bacolod City where he supposedly verified the complaint. It is a mystery, then, how respondent, in notarizing the complaints, could have certified that Bareno, Panadero and de la Cruz or not notarizing a documented executed and verified by people who have been long dead before its due execution is a ground for

personally

appeared before him

and

swore to

the

truth

of

the

facts

stated in the complaints. Respondent did not clarify whether the forms of identification presented to him and on which he relied were valid IDs. He never expounded on what documents Barenos impostor presented or on what kind of ID de la Cruzs impostor showed him. By recklessly notarizing the complaints without ascertaining that Hermogenes Bareno, Domingo Panadero, and Catalino de la Cruz were indeed personally appearing before him to attest to the contents and truth of what were stated in the complaints he prepared, respondent undermined the confidence of the public on notarial documents.breached Canon I He of the Code of Professional Responsibility which requires lawyers to uphold the Constitution, obey the laws of the land and promote respect for the law and legal processes, and Rule 1.01 thereof, which proscribes lawyers conduct. WHEREFORE for violating Public Act No. 2103, Section 1(a) and the , Code of Professional Responsibility, respondent Atty. Napoleon Corrals notarial commission, if still extant, is INDEFINITELY SUSPENDED from engaging in unlawful, dishonest, immoral or deceitful

MELANIO L. ZORETA vs. ATTY. HEHERSON ALNOR G. SIMPLICIANO A.C. No. 6492. FACTS: This is a complaint for disbarment filed against Atty. Heherson Alnor G. Simpliciano for allegedly notarizing several documents during the year 2002 after his commission as notary public had expired. The eight (8) notarized documents for the year 2002 submitted by complainant, consisting of affidavits of merit, certifications and verifications against non-forum shopping, and affidavits of service, were used and presented in the Regional Trial Court of Antipolo City, Branch 74, in Civil Case No. 01-6240, and in respondent's petition for certiorari filed in the Court of Appeals. It is evident from the foregoing that when respondent notarized the aforementioned documents, he was not commissioned as notary public, which was in violation of the Notarial Law. Records also show, and as confirmed by IBP Commissioner Navarro, that as of 02 August 2002, respondent had already notarized a total of 590 documents after the expiration of his commission as notary public without having renewed said commission amounting to gross misconduct Against as a member evidence of the legal by profession. complainant, His the presented November 18, 2004 (443 SCRA 1)

respondent did not even attempt to present any evidence. which chance was to granted, file his but no answer was forthcoming.

counsel filed an ex-parte motion for extension to file answer, Still, Thus, Hearing Commissioner Lydia A. Navarro gave respondent a last answer; which was again unheeded. respondent was unable to rebut complainants evidence that he was not so commissioned for the year in question. interest strong and ISSUE: RULING: For one, performing a notarial without such commission is a violation of the lawyers oath to obey the laws, more specifically, the Notarial Law. Then, too, by making it and indifference defense in to presenting offer. for his His lack of to the defense

charge and the evidence against him can only mean he has no and in What valid Conclusively, the of the year respondent 2002. Atty. Simpliciano is not a duly commissioned Notary Public for Quezon is the City significance commission?

appear that he is duly commissioned when he is not, he is, for all legal intents and purposes, indulging in deliberate These which falsehood, which the lawyers oath similarly proscribes. Canon 1 of the Code of Professional Responsibility,

violations fall squarely within the prohibition of Rule 1.01 of provides: A lawyer shall not engage in unlawful, dishonest,

immoral or deceitful conduct. The requirements for the issuance of a commission as notary public must not be treated as a mere casual formality. without the requisite The Court has characterized a lawyers act of notarizing documents commission therefore as reprehensible, constituting as it does, not only malpractice but also x x x the crime of falsification of public documents. For such reprehensible conduct, the Court has sanctioned erring lawyers by suspension from the practice of law, revocation of the notarial commission and disqualification from acting as such, and even disbarment. In the case of Nunga v. Viray, the Court had reason to state that where the notarization of a document is done by a member of the Philippine Bar at a time when he has no authorization or commission to do so, the offender may be subjected to disciplinary action. By such misconduct as a notary public, the lawyer likewise violates Canon 7 of the same Code, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession. Also, on different occasions, this Court had disbarred or suspended lawyers for notarizing documents with an expired commission in the following cases, to wit: 1. Flores v. Lozada, 2. Joson v. Baltazar, 3. Nunga v. Viray, and 4. Barrera. WHEREFORE, this Court hereby adopts the findings of Investigating Commissioner Lydia A. Navarro, which the Board of Governors of the Integrated Bar of the Philippines adopted and approved, but hereby MODIFIES the penalty recommended by the Board of Governors. As modified, respondent ATTY. HEHERSON ALNOR G. SIMPLICIANO is hereby BARRED PERMANENTLY from being commissioned as Notary Public. He is furthermore SUSPENDED from the practice of law for two (2) years, effective upon receipt of a copy of this Decision. Buensuceso v.

Medina vs. Greenfield Development Corp. 443 SCRA 150 FACTS : Petitioners are the grandchildren of Pedro Medina from two marriages. In his first marriage to Isadora San Jose, Pedro sired three children: Rafael, Rita and Remegia; in his second marriage, this time to Natalia Mullet, Pedro had five: Cornelio, Brigida, Balbino, Crisanta and Rosila. Except for Balbino and Crisanta, all of Pedros children likewise bore children, the petitioners in this case. On June 5, 1962, Pedro, his brother Alberto Medina and his niece Nazaria Cruz (Albertos daughter) executed a notarized Contract to Sell in favor of respondent Greenfield Development Corporation over a parcel of land located in Muntinlupa City, then in the Province of Rizal, covered by Transfer Certificate of Title (TCT) No. 100177 (Lot 90-A) and measuring 17,121 square meters. A notarized Deed of Sale covering said property was subsequently entered into on June 27, 1962, in favor of respondent, and this time signed by Pedro, Cornelio, Brigida, Balbino, Gregoria, Crisanta, Rosila, and Alberto, all surnamed Medina, and Nazaria Cruz, as vendors. Hereafter, a notarized Deed of Absolute Sale with Mortgage was executed on September 4, 1964 in favor of respondent over Lot 90-B Signing covered as by TCT were and No. 100178, measuring surnamed 16,291 square and meters. vendors Rosila, Pedro, Cornelio, all Brigida, Balbino,

Gregoria,

Crisanta,

Alberto,

Medina,

Nazaria Cruz. By virtue of these sales, respondent was able to register in its name the title to the two parcels of land with TCT No. 100578 covering properties Lot 90-A and TCT No. with 133444 other covering lots and Lot 90-B. These eventually were consolidated were

registered on July 19, 1995, in the name of respondent. On November 6, 1998, petitioners instituted Civil Case No. 98-233, an action for annulment of titles and deeds, reconveyance, damages with preliminary injunction and restraining order, against respondent and the Register of Deeds of Makati. Included in the complaint are the heirs of Nazaria Cruz, as unwilling co-plaintiffs. Petitioners allege in their complaint that they are co-owners of these two parcels of land. While the titles were registered in the names of Pedro, Alberto, Cornelio, Brigida and Gregoria, all surnamed Medina, they alleged that they were recognized as co-owners thereof. support of their case, petitioners In maintain that the deeds of sale on these properties were simulated and fictitious, and the signatures of the vendors therein were fake.

Despite Santos

the

transfer and his

of

the

title

to

respondents on a

name, of

they the

remained in possession thereof and in fact, their caretaker, a certain Arevalo family still reside portion property. On July 13, 1998, petitioners caused an adverse claim to be annotated on the titles.After discovering the annotation, respondent constructed barring a fence on the and property egress. Thus, and posted security sought, its personnel, among and their ingress petitioners and

others, the issuance of a temporary restraining order and a writ of preliminary injunction from enjoining respondent to agents their representatives petitioners have preventing petitioners the exercise rights

over the properties. Respondent denied the allegations, stating that no valid claim on properties as it is already titled in its name by virtue of the public documents executed by their predecessors. As counterclaim, respondent alleged that Santos Arevalo is not petitioners caretaker and it was them who employed him as caretaker. Issue: Whether or not the deeds of sale were valid? Ruling: What that a tilt the balance in respondents before a favor are the notarized enjoys the documents and the titles to the properties. well-settled rule is The document acknowledged notary public presumption of regularity.It is a prima facieevidence of the facts therein stated. To overcome this presumption, there must be presented evidence that is clear been and convincing. Absent In addition, the under such evidence, in the the name of are presumption respondent, must be upheld. titles

having

registered

the

Torrens

system,

generally a conclusive evidence of the ownership of the land referred to therein, and a strong presumption exists that the titles are regularly issued and valid. Therefore, until and unless petitioners show that the documents are indeed spurious and the titles invalid, then the presumptions must prevail at this juncture. Petitioners also claim that they are in actual possession of the property. Arevalo, their a As alleged in their as are complaint, they also on a instituted alleged portion that it Receipt Santos in their the co-petitioner, families belies caretaker. still They

petition filed before this Court that Balbino and Yolanda Medina and respective as residing a of property. Arevalo Respondent their claim, declaring employed and

caretaker. Respondent

presented

notarized

Quitclaim dated April 26, 1994, signed by Arevalo, who attested that he

was

employed

by

respondent

as

caretaker

and

that

his

stay

on

the

property was a mere privilege granted by respondent. Possession and ownership are two different legal concepts. Just as possession is not a definite proof of ownership, neither is nonpossession inconsistent with ownership. Even assuming that petitioners allegations are true, it bears no legal consequence in the case at hand because the execution of the deeds of conveyances is already deemed equivalent to delivery of the property to respondent, and prior physical delivery or possession is not legally required. Under Article 1498 of the Civil Code, when the sale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the object of the contract, if from the deed the contrary does not appear or cannot be inferred. Possession is also transferred, along with ownership thereof, to respondent by virtue of the notarized deeds of conveyances.

ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, vs. SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the HONORABLE COURT OF APPEALS. G.R. No. 129416. November 25, 2004 (444 SCRA 61) FACTS: On damages 11 January 1980, respondent Bustria spouses Estafino The and Florentina sought to Aquino (the Aquinos) filed a complaint for enforcement of contract and against Isidro (Bustria). complaint enforce an alleged sale by Bustria to the Aquinos dated 2 September 1978. Bustria and the of a fishpond located entered into a

in Dasci, Pangasinan. Such conveyance was covered by a Deed of Sale Aquinos compromise agreement, whereby Bustria agreed to recognize the validity of the sale, and grant the right to repurchase the same property after the lapse of seven (7) years. Bustria was then substituted by petitioner Zenaida B. Tigno, the daughter after his death. She attempted to repurchase the property however the Aquinos filed an opposition and alleged that Bustria had sold his right to repurchase the property to them in a deed of sale dated 17 October 1985. Among the witnesses presented by the Aquinos during trial were Jesus De Francia (De Francia), the instrumental witness to the deed of sale, and former Judge Franklin Cario (Judge Cario), who notarized the same. These two witnesses testified as to the occasion of the execution and signing of the deed of sale by Bustria. However, the admission of the Deed of Salewas objected to by Tigno on the ground that it was a false and fraudulent document which had not been acknowledged by Bustria as his own; and that its existence was suspicious, considering that it had been previously unknown. Decision was rendered by the RTC in favor of Tigno. The RTC therein expressed doubts as to the authenticity ofDeed of Sale, the characterizing the testimonies of De Francia and Cario as conflicting. The RTC likewise observed that nowhere in the alleged deed of sale was there any statement that it was acknowledged by Bustria; that it was suspicious that Bustria was not assisted or represented by his counsel in connection with the preparation and execution of the deed of sale. An appeal was interposed by the Aquinos to the Court of Appeals which then reversed and set aside the RTC Decision. The appellate court ratiocinated that there were no material or substantial inconsistencies between the testimonies of Cario and De Francia that would taint the document with doubtful authenticity; that the absence of the acknowledgment and substitution instead of a did not render the jurat

instrument invalid; and that the non-assistance or representation of Bustria by counsel did not render the document null and ineffective. Accordingly, the Court of Appeals held that the RTC erred in refusing to admit the Deed of Sale. Thus, this petition. Petitioner raises a substantial argument regarding the capacity of the notary public, Judge Cario, to notarize the document. ISSUES: Whether or not a deed of sale subscribed by way of jurat, not by acknowledgement is admissible as evidence. Whether presumption or of not the Court that of Appeals clearly only to erred duly in not appreciating the Deed of Saleas a private document and in applying the regularity attaches notarized documents, as distinguished from private documents. Whether or not sale. RULING: The assailed ruling of the Court of Appeals, which overturned the findings of fact of the Regional Trial Court, relied primarily on the presumption of regularity attaching to notarized documents with respect to its due execution. The Court now concludes instead that the document has not been duly notarized and accordingly reverse the decision of Court of Appeals. There are palpable errors in this certification. The document is certified by way of jurat instead of an acknowledgment. jurat is a a A distinct creature from an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed; while a is that part jurat of an affidavit where the officer certifies that the same was sworn before him. Under Section 127 of the Land Registration Act, which has been replicated in Section 112 of Presidential Decree No. 1529, the Deed of Sale should have been acknowledged before a notary public. Moreover, Franklin Cario at the time of the notarization of the Deed of Sale, was a sitting judge of the Metropolitan Trial Court of Alaminos. Citing Tabao v. Asis, the municipal judges may not undertake the preparation and acknowledgment of private documents, contracts, and other acts of conveyance which bear no relation to the performance of their functions as judges. The Deed of Salewas not connected with any official duties of Judge Cario, and there was no reason for him to notarize derives it. from The the validity authority of of a the notarial notarial certification officer. the If necessarily notary Judge Cario is authorized to notarize a deed of

public does not have the capacity to notarize a document, but does so anyway, then the document should be treated as unnotarized. Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. However, the absence of notarization of the Deed of Salewould not necessarily invalidate the transaction evidenced therein. Article 1358 of the Civil Code requires that the form of a contract that transmits or extinguishes real rights over immovable property should be in a public document, yet it is also an accepted rule that the failure to observe the proper form does not render the transaction invalid. The sale of real property though not consigned in a public instrument or formal writing, is nevertheless valid and binding among the parties, for the time-honored rule is that even a verbal contract of sale or real estate produces legal effects between the parties. Clearly, the presumption of regularity relied upon by the Court of Appeals no longer holds true since the of Saleis not a notarized Deed document. The Deed of Sale, invalidly notarized as it was, does not fall under the enumeration of public documents; hence, it must be considered a private document. The nullity of the alleged or attempted notarization performed question by from Judge the Cario class is of sufficient public to exclude the document that in documents. Even assuming

the Deed of Salewas validly notarized, it would still be classified as a private document, since it was not properly acknowledged, but merely subscribed and sworn to by way jurat. of Being a private document, the Deed of Saleis now subject to the requirement of proof under Section 20, Rule 132, which states: Section 20.Proof of private document.Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) (b) By anyone who saw the document executed or written; or By evidence of the genuineness of the signature or

handwriting of the maker. Since the theDeed of Salewas offered in evidence as authentic by the Aquinos, the burden falls the due upon the Aquinos of to prove its authenticity. However, as established, Deed of Saleis a private the document. Thus, not only execution the document must be proven but also its authenticity which was not duly considered by the Court of Appeals. The testimonies of Judge Cario and De Francia now

become

material

not

only

to

establish

due

execution,

but

also

the

authenticity of the Deed of Sale. Nevertheless, the inconsistencies in the testimonies of Judge Cario and De Francia are irreconcilable. De Francia testified that Judge Cario himself prepared and typed the Deed of Sale in his office, where the document was signed,while Judge Cario testified that he did not type the Deed of Salesince it was already prepared when the parties arrived at his office for the signing. The totality of the picture leads the Court to agree with the trial court that the Deed of Saleis ineluctably dubious in origin and in execution. The Court deems as correct the refusal of the RTC to admit the Deed of Sale, since its due execution and authenticity have not been proven. WHEREFORE, 23 December the Petition is GRANTED. The 9 June assailed Decision dated 1997 of the Court of 1996 and Resolutiondated

Appeals in CA-G.R. CV No. 49879 is REVERSED, andDecision dated 18 the August 1994 of the Regional Trial Court of Alaminos, Pangasinan, Branch 55, in Civil Case No. A-1918 is REINSTATED. Costs against respondents.

FELIX AZUELA, vs. COURT OF APPEALS.

G.R. No. 122880; April 12, 2006 (487 SCRA 119) FACTS: The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all selfevident in view of Articles 805 and 806 of the Civil Code. A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection. The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent. The will, consisting of two (2) pages and written in the vernacular Pilipino: PATUNAY NG MGA SAKSI Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo sa 1981, ng ay nilagdaan ng nasabing at sa tagapagmana ilalim kasulatang nabanggit

kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.

The

three

named

witnesses

to

the

will

affixed

their

signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the its 12 legitimate was heirs" so it of could by the be decedent. Geralda utilized as a Castillo in claimed that the will is a forgery, and that the true purpose of emergence court defense several cases filed oppositor against petitioner,

particularly for forcible entry and usurpation of real property, all centering on petitioners right to occupy the properties of the decedent. It of also asserted the that contrary was to the representations were then petitioner, abroad. Per decedent it was actually

survived by 12 legitimate heirs, namely her grandchildren, who residing records, subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedents signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition. ISSUE: WHETHER OR NOT the will was not executed and attested to in accordance with the law. RULING: Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's and name by written by some other and person in his and presence, his express direction, attested

subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name sign, and as the instrumental witnesses of the will, shall also each and every page thereof, except the aforesaid,

last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. An acknowledgement coerces is the not an empty meaningless the act. The

acknowledgment

testator

and

instrumental

witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing in for the the the criminal of prosecution spurious of the of persons or It who also participate executed execution free wills, testator. those

without

consent

provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will. All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable. WHEREFORE, the petition is DENIED. Costs against petitioner.

PAN PACIFIC INDUSTRIAL SALES CO., INC., COURT OF APPEALS and NICOLAS vs. CAPISTRANO . G.R. No. 125283; February 10, 2006 (482 SCRA 164) FACTS: On 10 September Bank (the 1982, to Bank) Capistrano mortgage as executed the for a Special lot the in Power favor of of loan Attorney authorizing Associated accommodation. Shortly, by virtue of the Special Power of Attorney, Cruz obtained a loan in the amount of P500,000.00 from the Bank. Thus, he executed a Real Estate Mortgage over the subject lot in favor of the Bank. Capistrano and Cruz then executed a letter-agreement dated 23 September 1982 whereby Cruz of agreed to buy the would (2) subject be paid from the lot out 30 for of the the price loan 1982, of P350,000.00, payments On which P200,000.00 within two Cruz subject

security

latters

secured by Cruz, and the balance P150,000.00 in eight (8) quarterly of ofP18,750.00 15 March years executed October of without need of demand and with interest at 18% in case of default. 1983, Capistrano Deed Absolute Sale over the subject lot in favor of Cruz. Two (2) days later, on 17 March 1983, Notary Public Vicente J. Benedicto (Benedicto) notarized the deed. However, it was earlier or on 9 March 1983 that Capistranos wife, Josefa Borromeo Capistrano, signed the Marital Consent evidencing her conformity in advance to the sale. The Marital Consent was also sworn to before Benedicto. Following Capistrano the execution to of the a deed of sale, of Cruz continued by total payments to Capistrano for the subject lot. Sometime in October 1985, delivered as Cruz Statement as Account signed or a Capistrano, showing that as of 30 October 1985, Cruzs balance stood at P19,561.00 ofP23,081.98. Thus, in May 1987, with the mortgage on the subject lot then being in danger of foreclosure by the Bank, Cruz filed a case with the RTC of Manila, Branch 11, docketed as Civil Case No. 87-40647, to enjoin the foreclosure. Cruz impleaded Capistrano and his spouse Josefa Borromeo Capistrano as defendants, the title to the subject lot not having been transferred yet to his name. Pan Pacific, which bought the subject lot from the Cruz spouses, was allowed to intervene in the proceedings and joined in Cruz, principal, and P3,520.98 interest,

resisting the complaint insofar as the first cause of action on the subject lot is concerned. ISSUE: WHETHER OR NOT THE RESCISION OF DEED OF ABSOLUTE SALE MAY BE GRANTED. RULING: The petition is imbued with merit. Deeply embedded in our jurisprudence is the rule that notarial documents celebrated with all the legal requisites under the safeguard of a notarial certificate is evidence of a high character and to overcome its recitals, it is incumbent upon the party challenging it to prove his claim with clear, convincing and more than merely preponderant evidence. A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and it has in its favor the presumption of regularity which may only be rebutted by evidence so clear, strong and convincing as to exclude all controversy as to the falsity of the certificate. Absent such, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a notarial document lies on the one contesting the same. Furthermore, an allegation of forgery must be proved by clear and convincing evidence, and whoever alleges it has the burden of proving the same. Evidently, Capistrano discharged has this as the he impugns of the making genuineness out a of the documents, that share the the burden clear-cut does case not

documents are bogus. The courts below both concluded that Capistrano had burden. However, this Court conclusion. Indeed, Capistrano failed to present evidence of the forgery that is enough to overcome the presumption of authenticity. Corollarily, he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness. The courts below also assigned an adverse connotation to Cruzs impleading of the Capistrano spouses as party-defendants in the action against the Bank to enjoin the foreclosure of the mortgage on the subject lot. Cruzs move is congruent with both his strong desire to protect his interest in the subject lot and the reality that there was an existing deed of sale in his favor. Precisely, his interest in the lot is borne out and had arisen from the deed of sale. As purchaser of

the lot, he had to avert the foreclosure of the mortgage thereon. And to ensure against the dismissal of the action for failure to join a real party-in-interest, he had to implead Capistrano in whose name the title to the subject lot was registered still. The use of a jurat, instead of an acknowledgement does not elevate the Marital it Consent to the to the status level of of a a public document but instead of consigns private writing. lack The

acknowledgment, however, does not render a deed invalid. The necessity of a public document for contracts which transmit or extinguish real rights over immovable property, as mandated by Article 1358 of the Civil Code, is only for convenience; it is not essential for validity or enforceability. WHEREFORE, the Petition is GRANTED. The Decision dated 4 June 1996 of the Court of Appeals in CA-G.R. CV No. 41112 is REVERSED and SET ASIDE. Respondent Nicolas Capistrano is ordered to surrender the owners duplicate certificate of Transfer of Certificate of Title No. 143599 to the Register of Deeds of Manila to enable the issuance of a new title over the subject lot in the name of petitioner Pan Pacific Industrial Sales, Inc. Costs against respondent Nicolas Capistrano.

VICTORINA BAUTISTA, vs. ATTY. SERGIO E. BERNABE . A.C. No. 6963; February 9, 2006 (482 SCRA 1) FACTS: Complainant alleged that on January 3, 1998, respondent prepared and notarized a Magkasanib na Salaysay purportedly executed by Donato Salonga and complainants mother, Basilia de la Cruz. affiants Both declared that a certain parcel of land in Bigte, Norzagaray, Bulacan, was being occupied by Rodolfo Lucas and his family for more than 30 years. Complainant claimed that her mother could not have executed the joint affidavit on January 3, 1998 because she has been dead since January 28, 1961. In his Answer, respondent denied that he falsified Magkasanib the na Salaysay.He that disclaimed before he any knowledge the about Basilias he death. He for alleged notarized document, requested

Basilias presence and in her absence, he allowed a certain Pronebo, allegedly a son-in-law of Basilia, to sign above the name of the latter as shown by the word by" on top of the name of Basilia. Respondent " maintained that there was no forgery since the signature appearing on top of Basilias name was the signature of Pronebo. ISSUE: WHETHER OR NOT respondent act unethical conduct in the performance of his duties as notary public. RULING: In a Complaint filed before the Commission on Bar Discipline of 1 the Integrated Bar of the Philippines (IBP) on November 16, 2004, complainant Victorina Bautista prays for the suspension or disbarment of respondent Atty. Sergio E. Bernabe for malpractice and unethical conduct in the performance of his duties as a notary public and a lawyer. The records sufficiently established that Basilia was already dead when the joint affidavit was prepared on January 3, 1998. Respondents alleged lack of knowledge of Basilias death does not excuse him. It was his duty to require the personal appearance of the affiant before affixing his notarial seal and signature on the instrument. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The presence of the parties to the deed will enable the notary public to verify the genuineness of the signature of the affiant.

By affixing his signature and notarial seal on the instrument, he led us to believe that Basilia personally appeared before him and attested to the truth and veracity of the contents of the affidavit when in fact it was a certain Pronebo who signed the document. Respondents conduct is fraught with dangerous possibilities considering the conclusiveness on the due execution of a document that our courts and the public accord on notarized documents. Respondent has clearly failed to exercise utmost diligence in the performance of his function as a notary public and to comply with the mandates of the law. Respondent was also remiss in his duty when he allowed Pronebo to sign in behalf of Basilia. A member of the bar who performs an act as a notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him. They should swear to the document personally and not through any representative. WHEREFORE,for breach of the Notarial Law and Code of Professional Responsibility, the notarial commission of respondent Atty. Sergio E. Bernabe, of law isREVOKED . for a He is DISQUALIFIEDfrom of one year, reappointment as Notary He is Public for a period of two years. He is also SUSPENDED from the practice period effective immediately. further WARNED that a repetition of the same or of similar acts shall be dealt with more severely. He DIRECTED to report the date of receipt is of this Decision in order to determine when his suspension shall take effect.

TAGUNICAR et al. vs LORNA EXPRESS CREDIT CORP.

G.R. No. 138592, February 28, 2006 (483 SCRA 486) FACTS: Spouses Elsa and Emerson Tagunicar (petitioners) obtained a loan of P60,000.00 from Lorna Express Credit Corporation (respondent). As security, they executed a deed of mortgage over their two unregistered lots with improvements located at Upper Bicutan, Taguig, Metro Manila. Subsequently, because of the failure of the petitioners to pay said loan, the respondent filed with the RTC of Makati City a The complaint RTC, for sum of money the amounting complaint due to to for the P223,057.34 respondents inability of (representing the principal and interests) against petitioners. however, to dismissed failure prosecute. Meantime,

petitioners to pay their loan (now amounting to P740,254.87), respondent, through its counsel, filed with the Office of the Sheriff On of Taguig, Metro 1997, Manila the an application of Auction for extra was judicial foreclosure under Act No. 3135, as amended. September 29, Notice Sale issued by the Office of Notary Public. It was (1) posted at three public places in the municipalities of Taguig and Pasig; and (2) published in Bongga once a week for three consecutive weeks (October 4, 11 and 18, 1997), setting the auction sale of the mortgaged property on October 24, 1997 at ten oclock in the morning at the main entrance of the Taguig Municipal Hall. Petitioners immediately filed with the RTC a petition for prohibition from proceeding with the auction sale. The petition and the subsequent motion for reconsideration were denied by the RTC. This prompted petitioners to file with the Court of Appeals a petition for for review, on which was also before only 3 of denied. the Hence, the petition after review third in and that Order certiorari Supreme the Court. first as

Petitioners the publication, amended,

alleged

that the said auction sale was set, not publication, of law 3, the no. but after Act for the Section No. 3135,

violation

applicable and thus,

extrajudicial foreclosure

foreclosure of a mortgage and auction sale is the Supreme Court Administrative proceedings before a notary public is null and void. ISSUE:

Whether RULING:

or

not

the

foreclosure

proceedings

before

the

notary public is null and void. No, the foreclosure proceeding before the notary public is valid. As to the petitioners contention that the notice of auction sale did not comply with the requirements in Section 3, Act No. 3135, records show that the notice of auction sale was posted in three public places in the Municipality of Taguig and Pasig City. The said notice was published once a week for three consecutive weeks or on October 4, 11 and 18, 1997 in Bongga, a newspaper of general circulation. Thus, the mandatory requirements of notice and publication provided in Section 3, Act No. 3135, as amended, were complied with. As to the authority of the Notary Public to conduct public auction, Section 4 of Act No. 3135, as amended, provides: Sec. 4. The sale shall be made at public auction, between the hours of nine in the morning and four in the afternoon; and shall be under the direction of the sheriff of the province, the justice or auxiliary justice of the peace (now municipal or auxiliary municipal judge) of the municipality in which such sale has to be made, or a NOTARY PUBLIC of said municipality, who shall be entitled to collect a fee of five pesos for each day of actual work performed, in addition to his expenses. Clearly, the Notary Public is authorized to direct or conduct a public auction. WHEREFORE, the petition is denied. The assailed decision of the CA is affirmed.

MALLARI VS. ALSOL

G.R. No. 150866; 06 March 2006 (484 SCRA 148) Facts: Stalls Abelardo death on No. 7 and 8 of the Supermarket father the of stalls Section Manuel to of the Cabanatuan City Public Market were awarded to and occupied by Mallari 16 July ("Abelardo"), 1986, he gave Mallari and ("Manuel") and Rebecca Alsol ("respondent"). Before Abelardos Manuel respondent. Manuel and his wife Millie Mallari ("petitioners") occupied Stall No. 7 while respondent and her husband Zacarias Alsol occupied Stall No. 8. In July 1988, respondents daughter became sick and the Alsol family had to stay in Manila for two months for the medical treatment. They returned to Cabanatuan City in September 1988 only to find out that petitioners were already occupying Stall No. 8. The partition between Stalls No. 7 and 8 had been removed No. 8. Respondent sought the help of the City Market Committee ("Committee"). On 5 May 1989, the Committee passed Kapasiyahan Blg. 1, s-1989 granting Stall No. 7 to Manuel and Stall No. 8 to respondent. On 4 June 1990, respondent and the City Government of Cabanatuan ("City Government"), represented by City Mayor Honorato C. Perez ("Mayor Perez"), executed a Contract of Lease ("Lease Contract"). The Lease Contract granted respondent the right to occupy Stall No. 8 for a monthly rental of P316 subject to increase or decrease in accordance with the rules and ordinances of the City Government. Issue: Whether the Lease Contract executed between respondent and the City Government is valid. Held: Petitioners allege that the Court of Appeals erred in applying Republic Act No. 7160, otherwise known as the Local Government Code of 1991, which took effect on 1 January 1992 or long after the execution of the Lease Contract on 4 June 1990. The Court agrees law. with petitioners the Court that of RA 7160 is not the have applicable applied Instead, Appeals should and respondents merchandise and things were already gone. Petitioners refused respondents demand to vacate Stall

Batas

Pambansa

Blg. 337 or the old Local Government

Code. Still, even under BP 337, city mayors have the authority to sign contracts on behalf of city governments. Petitioners valid because also allege Perez that not the Lease Contract the a is not Mayor did a appear before notary public

public who notarized the document. Notarization converts private document into document. However, the non-appearance of the parties before the notary public who notarized the document does not necessarily nullify nor render the parties transaction void ab initio. Thus: x x x Article of 1358 a not Where of the New Civil is or is Code on the for necessity public for a document only

convenience, a contract.

validity contract

enforceability. in the form

Failure to follow the proper form does not invalidate not prescribed by law, the parties can merely compel each other to observe that form, once the contract has been perfected. This is consistent with the basic principle that contracts are obligatory in whatever form they may have been entered into, provided all essential requisites are present. Hence, the Lease Contract is valid despite Mayor Perezs failure to appear before the notary public.