excusable negligence as he relied on the assurances of Manuel A.

Bernardo, a
ROSALINDA BERNARDO VDA DE ROSALES vs. ATTY. RAMOS
A.C. No. 5645 ; July 2, 2002
FACTS:
This is a case for disbarment for Atty. Ramos by the NBI in behalf of the petitioner for
violation of Act. No. 2711 or the Notarial Law. This case stemmed from the borrowing
of the original title to a parcel of land in Paco,Manila by petitioners brother, Manuel.
When petitioner wanted to recover the title, her brother refused. As remedy,
petitioner Rosalinda executed an affidavit of loss and presented it to the Register of
Deeds of Manila. However, to her surprise, the Register of Deeds informed her that
the title to the subject land has already been transferred to her brother, Manuel, via a
deed of Absolute Sale to which Atty. Ramos notarized.
kababayan from Pampanga, that the document would not be used for any illegal
purpose.
We cannot honor, much less give credit to this allegation. That respondent notarized
the document out of sympathy for his kababayan is not a legitimate excuse. It is
appalling that respondent did away with the basics of notarial procedure in order to
accommodate the alleged need of a friend and client. In doing so, he displayed a
decided lack of respect for the solemnity of an oath in a notarial document.
WHEREFORE, for lack of diligence in the observance of the Notarial Law, the
commission of respondent Atty. Mario G. Ramos as Notary Public, if still existing, is
REVOKED and thereafter Atty. Ramos should be DISQUALIFIED from
reappointment to the office of Notary Public.

This prompted Rosalinda to file with the NBI a complaint for falsification of public Respondent Atty. Mario G. Ramos is also SUSPENDED from the practice of law for a
documents against Atty. Ramos. Respondent prayed for the dismissal of the period of six (6) months effective immediately. He is DIRECTED to report to this
complaint since according to him he only inadvertently signed the purported Deed of Court his receipt of this Decision to enable it to determine when his suspension shall
Absolute Sale and/or that his signature was procured through mistake, fraud, undue have taken.
influence or excusable negligence, claiming that he simply relied on the assurances
of Manuel that the document would not be used for purposes other than a loan
between brother and sister, and that he affixed his signature thereon with utmost
good faith and without intending to obtain personal gain or to cause damage or injury
to another.

HELD:

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 purpose of this
requirement is to enable the notary public to verify the genuineness of the signature
of the acknowledging party and to ascertain that the document is the party's free act
and deed.

We take note of respondent's admission in his Answer that he had affixed his
signature in the purported Deed of Absolute Sale but he did not enter it in his notarial
registry. This is clearly in violation of the Notarial Law for which he must be
disciplined.

Respondent alleges that he merely signed the Deed of Absolute Sale inadvertently
and that his signature was procured through mistake, fraud, undue influence or
 [A.C. No. 6294. November 17, 2004]
ATTY. MINIANO B. DELA CRUZ, complainant, vs. ATTY. ALEJANDRO P.
ZABALA, respondent.
RESOLUTION
QUISUMBING, J.:
In his Letter-Complaint for Disbarment filed before the Committee on Bar
Discipline of the Integrated Bar of the Philippines, complainant Atty. Miniano B. Dela
Cruz charged respondent, Atty. Alejandro P. Zabala, for violating his oath as a notary
public.
Complainant alleged that respondent notarized with unknown witnesses, a fake
deed of sale allegedly executed by two dead people, in gross violation of his oath as
a Commissioned Notary Public in Quezon City.[1]
Complainant averred that he was retained by a certain Demetrio C. Marero last
December 21, 1996, 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 before the
Regional Trial Court of Antipolo City, Branch 72. The court issued an Order
approving the said petition on March 10, 1997.[2]
On May 20, 1997, complainant purchased the said property from Marero and
had the title transferred to him and his wife. OCT No. 4153 was then cancelled and
replaced by Transfer Certificate of Title (TCT) No. 330000.[3]
The next day, complainant requested a certain Mrs. Adoracion Losloso and Mr.
Nestor Aguirre to register the title in the formers 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., under TCT No. N-107359.[4]
On May 27, 1997, respondent notarized a Deed of Absolute Sale over the land
covered by OCT No. 4153, executed by Cirila Tapales and Pedro Sumulong in favor
of the complainant and his wife.[5]
On December 9, 1997, Mr. Marero filed a Complaint for Reconveyance of Title of
the land, subject of the Deed of Sale which was notarized by respondent, with
damages against the complainant and his wife. The Deed of Sale was the same
document Marero used when he filed a complaint for Estafa thru Falsification of
Public Document docketed as I.S. No. 98-16357 before the Quezon City Prosecutors
Office and in a disbarment case docketed as Adm. Case No. 4963 against
complainant.[6]
Purportedly, 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.[7]
The IBP then required the respondent to file his answer to the said allegations.
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,
the minimum requirements to notarize a document are the presence of the parties
and their presentation of their community tax 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.[8]
Thereafter, the parties were ordered to appear before the IBP Commission on
Bar Discipline on July 31, 2001 and August 21, 2001, and required to submit their
position papers.
The IBP Commission on Bar Discipline, in its Report dated September 29, 2003,
recommended that respondent be reprimanded for violating Canon 5 of the Code of
Professional Responsibility.[9] The allegations with respect to the prayer for
disbarment were recommended for dismissal for insufficiency of evidence. The
Commissioner held that complainant failed to establish by convincing proof that
respondent had to be disbarred because of his notarial negligence. The alleged
failures of respondent did not indicate a clear intent to engage in unlawful, dishonest,
immoral or deceitful conduct, according to the Commissions Report.
Noteworthy, however, respondent did not deny that he notarized the cited Deed
of Sale under the circumstances alleged by complainant. It appears that there was
negligence on respondents part which, in our view, is quite serious. Thus, we cannot
conclude that he did not violate the Notarial Law,[10] and our rules regarding Notarial
Practice.[11] Nor could we agree that, as recommended by the IBP, he should only be
reprimanded. At least his commission as Notary Public should be revoked and for
two years he should be disqualified from being commissioned as such.
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. In
addition, a copy of the title was not attached to the said Deed of Sale when it was
presented for notarization. The aforementioned circumstances should have alerted
respondent. Given the ease with which community tax certificates are obtained these
days, respondent should have been more vigilant in ascertaining the identity of the
persons who appeared before him.
We have empathically stressed that notarization is not an empty, meaningless
routinary act. It is invested with substantive public interest. It must be underscored
that the notarization by a notary public converts a private document into a public
document, making that document admissible in evidence without further proof of
authenticity thereof. A notarial document is, by law, entitled to full faith and credit
upon its face. For this reason, a notary public 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.[12]
Section 1 of Public Act No. 2103 provides,
...
(a) The acknowledgment shall be made before a notary public or an officer duly
authorized by law of the country to take acknowledgments of instruments or
documents in the place where the act is done. The notary public or the officer taking
the acknowledgment shall certify that the person acknowledging the instrument or
document is known to him and that he is the same person who executed it, and
acknowledged that the same is his free act and deed. The certificate shall be made
under his official seal, if he is by law required to keep a seal, and if not, his certificate
shall so state. [Emphasis ours.]
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. He is DIRECTED to report the date of
his receipt of this Resolution to the Court within five (5) days from such receipt.
Further, he is ordered to SHOW CAUSE why he should not be subject to disciplinary
action as a member of the Bar.
Let copies of this Resolution be furnished to all the courts of the land as well as
the Integrated Bar of the Philippines, and the Office of the Bar Confidant. Let this
Resolution be also made of record in the personal files of the respondent.
SO ORDERED.

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.[13]
The function of a notary public is, among others, to guard against any illegal or
immoral arrangements.[14] By affixing his notarial seal on the instrument, he
converted the Deed of Absolute Sale, from a private document into a public
document. In doing so, respondent, in effect, proclaimed to the world that (1) all the
parties therein personally 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 of execution of the instrument; and (5) they acknowledged
personally before him that they voluntarily and freely executed the same. [15] As a
lawyer commissioned to be a notary public, respondent is mandated to discharge his
sacred duties with faithful observance and utmost respect for the legal solemnity of
an oath in an acknowledgment or jurat. [16] Simply put, such responsibility is
incumbent upon him, he must now accept the commensurate consequences of his
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.
A.C. No. 5281 February 12, 2008
MANUEL L. LEE, petitioner,
vs.
ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics
of the legal profession for notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr.,
never executed the contested will. Furthermore, the spurious will contained the
forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to
its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim
Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena
Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before respondent on June 30,
1965.1 Complainant, however, pointed out that the residence certificate2 of the
testator noted in the acknowledgment of the will was dated January 5,
1962.3 Furthermore, the signature of the testator was not the same as his signature
as donor in a deed of donation4 (containing his purported genuine signature).
Complainant averred that the signatures of his deceased father in the will and in the
deed of donation were "in any way (sic) entirely and diametrically opposed from (sic)
one another in all angle[s]."5
Complainant also questioned the absence of notation of the residence certificates of
the purported witnesses Noynay and Grajo. He alleged that their signatures had
likewise been forged and merely copied from their respective voters affidavits.
Complainant further asserted that no copy of such purported will was on file in the
archives division of the Records Management and Archives Office of the National
Commission for Culture and the Arts (NCCA). In this connection, the certification of
the chief of the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in
this Office[s] files.6
Respondent in his comment dated July 6, 2001 claimed that the complaint against
him contained false allegations: (1) that complainant was a son of the decedent
Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged
that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and
testament was validly executed and actually notarized by respondent per affidavit7 of
Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint
affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee,
Jr. xxx."9
Respondent further stated that the complaint was filed simply to harass him because
the criminal case filed by complainant against him in the Office of the Ombudsman
"did not prosper."
Respondent did not dispute complainants contention that no copy of the will was on
file in the archives division of the NCCA. He claimed that no copy of the contested
will could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action against
him as he (complainant) did not first file an action for the declaration of nullity of the
will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation.10
In his report, the investigating commissioner found respondent guilty of violation of
pertinent provisions of the old Notarial Law as found in the Revised Administrative
Code. The violation constituted an infringement of legal ethics, particularly Canon
111 and Rule 1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the
investigating commissioner of the IBP Commission on Bar Discipline recommended
the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part of
this Resolution as Annex "A"; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules, and
considering Respondents failure to comply with the laws in the discharge of
his function as a notary public, Atty. Regino B. Tambago is hereby suspended
 from the practice of law for one year and Respondents notarial commission
is Revoked and Disqualified fromreappointment as Notary Public for two (2)
years.14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of his estate, to take effect after his
death.15 A will may either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of
wills. The object of solemnities surrounding the execution of wills is to close the door
on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee
their truth and authenticity.16
A notarial will, as the contested will in this case, is required by law to be subscribed
at the end thereof by the testator himself. In addition, it should be attested and
subscribed by three or more credible witnesses in the presence of the testator and of
one another.17
The will in question was attested by only two witnesses, Noynay and Grajo. On this
circumstance alone, the will must be considered void.18 This is in consonance with
the rule that acts executed against the provisions of mandatory or prohibitory laws
shall be void, except when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary
public by the testator and the witnesses.19 The importance of this requirement is
highlighted by the fact that it was segregated from the other requirements under
Article 805 and embodied in a distinct and separate provision.20
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. It involves an extra
step undertaken whereby the signatory actually declares to the notary public that the
same is his or her own free act and deed.21 The acknowledgment in a notarial will
has a two-fold purpose: (1) to safeguard the testators wishes long after his demise
and (2) to assure that his estate is administered in the manner that he intends it to be
done.
A cursory examination of the acknowledgment of the will in question shows that this
particular requirement was neither strictly nor substantially complied with. For one,
there was the conspicuous absence of a notation of the residence certificates of the
notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation
of the testators old residence certificate in the same acknowledgment was a clear
breach of the law. These omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. As we held
in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries public.
They are required to certify that the party to every document acknowledged
before him had presented the proper residence certificate (or exemption from
the residence tax); and to enter its number, place of issue and date as part of
such certification.
These formalities are mandatory and cannot be disregarded, considering the degree
of importance and evidentiary weight attached to notarized documents.23 A notary
public, especially a lawyer,24 is bound to strictly observe these elementary
requirements.
The Notarial Law then in force required the exhibition of the residence certificate
upon notarization of a document or instrument:
Section 251. Requirement as to notation of payment of [cedula] residence
tax. Every contract, deed, or other document acknowledged before a notary
public shall have certified thereon that the parties thereto have presented
their proper [cedula] residence certificate or are exempt from the [cedula]
residence tax, and there shall be entered by the notary public as a part of
such certificate the number, place of issue, and date of each [cedula]
residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence Tax
Act26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any
document before a notary public xxx it shall be the duty of such person xxx
with whom such transaction is had or business done, to require the exhibition
of the residence certificate showing payment of the residence taxes by such
person xxx.
In the issuance of a residence certificate, the law seeks to establish the true and
correct identity of the person to whom it is issued, as well as the payment of
residence taxes for the current year. By having allowed decedent to exhibit an
expired residence certificate, respondent failed to comply with the requirements of
both the old Notarial Law and the Residence Tax Act. As much could be said of his
failure to demand the exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy
of the notarized will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witness. 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. (emphasis supplied)
Respondents failure, inadvertent or not, to file in the archives division a copy of the
notarized will was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary
entries pertaining to the will in his notarial register. The old Notarial Law required the
entry of the following matters in the notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or acknowledged before
him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the
instrument.27
In an effort to prove that he had complied with the abovementioned rule, respondent
contended that he had crossed out a prior entry and entered instead the will of the
decedent. As proof, he presented a photocopy of his notarial register. To reinforce his
claim, he presented a photocopy of a certification28 stating that the archives division
had no copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown
that the original is unavailable. The proponent must first prove the existence and
cause of the unavailability of the original,29 otherwise, the evidence presented will not
be admitted. Thus, the photocopy of respondents notarial register was not
admissible as evidence of the entry of the execution of the will because it failed to
comply with the requirements for the admissibility of secondary evidence.
In the same vein, respondents attempt to controvert the certification dated
September 21, 199930 must fail. Not only did he present a mere photocopy of the
certification dated March 15, 2000;31 its contents did not squarely prove the fact of
entry of the contested will in his notarial register.
Notaries public must observe with utmost care32 and utmost fidelity the basic
requirements in the performance of their duties, otherwise, the confidence of the
public in the integrity of notarized deeds will be undermined.33
Defects in the observance of the solemnities prescribed by law render the entire will
invalid. This carelessness cannot be taken lightly in view of the importance and
delicate nature of a will, considering that the testator and the witnesses, as in this
case, are no longer alive to identify the instrument and to confirm its
contents.34 Accordingly, respondent must be held accountable for his acts. The
validity of the will was seriously compromised as a consequence of his breach of
duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of duty
on the part of a notary public shall, in the discretion of the proper judge of first
instance, be sufficient ground for the revocation of his commission:
(b) The failure of the notary to make the proper entry or entries in his notarial
register touching his notarial acts in the manner required by law.
(f) The failure of the notary to make the proper notation regarding cedula
certificates.36
These gross violations of the law also made respondent liable for violation of his oath
as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules
of Court37 and Canon 138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of
the Philippines, uphold the Constitution and obey the laws of the land.40 For a lawyer
is the servant of the law and belongs to a profession to which society has entrusted
the administration of law and the dispensation of justice.41
While the duty to uphold the Constitution and obey the law is an obligation imposed
on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law, a lawyer should moreover
make himself an example for others to emulate.42 Being a lawyer, he is supposed to
be a model in the community in so far as respect for the law is concerned.43
The practice of law is a privilege burdened with conditions.44 A breach of these
conditions justifies disciplinary action against the erring lawyer. A disciplinary
sanction is imposed on a lawyer upon a finding or acknowledgment that he has
engaged in professional misconduct.45 These sanctions meted out to errant lawyers
include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction.46 We have held in a
number of cases that the power to disbar must be exercised with great caution47 and
should not be decreed if any punishment less severe such as reprimand,
suspension, or fine will accomplish the end desired.48 The rule then is that
disbarment is meted out only in clear cases of misconduct that seriously affect the
standing and character of the lawyer as an officer of the court.49
Respondent, as notary public, evidently failed in the performance of the elementary
duties of his office. Contrary to his claims that he "exercised his duties as Notary
Public with due care and with due regard to the provision of existing law and had
complied with the elementary formalities in the performance of his duties xxx," we
find that he acted very irresponsibly in notarizing the will in question. Such
recklessness warrants the less severe punishment of suspension from the practice of
law. It is, as well, a sufficient basis for the revocation of his commission50 and his
perpetual disqualification to be commissioned as a notary public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the
Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional
Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial
Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one
year and his notarial commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts of the land, the Integrated
Bar of the Philippines and the Office of the Bar Confidant, as well as made part of the
personal records of respondent.
SO ORDERED.
LEEvTAMBAGO
A.C. No. 5281, 12 February 2008544 SCRA 393Lee explains the reason
for the stringent formalities prescribed by law in the making of a notarial will. It
is disturbing that in this decision, the court ruled that the non-notation of the
Residence certificates of the notarial witnesses and/or the use of the
testators expired residence certificate are sufficient to invalidate a will.
FACTS:
1. In a letter-complaint, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tanbago with violation of the Notarial Law and the
ethics of the legal profession for notarizing a spurious last will and testament.
2. In his complaint, he averred that his father, the decedent Vicente
Lee Sr., never executed the contested will. Furthermore, the spurious will
contain the forged signatures of the purported witnesses to its execution.
3. In the said will, the decedent supposedly bequeathed his entire
estate to his wife Lim Hock Lee, save for a parcel of land which he devised to
Vicente Lee, Jr. and Elena Lee, half siblings of complainant.
4. The will was purportedly executed and acknowledged before
respondent on June 30, 1965. Complainant, however, pointed out thatthe
residence certificate of the testator noted in the acknowledgment of the will
was dated January 5, 1962. Furthermore, the signature of the testator was
not the same as his signature as donor in a deed of donation (containing his
purported genuine signature). Complainant averred that the signatures of his
deceased father in the will and in the deed of donation were in any way(sic)
entirely and diametrically opposed from (sic) one another in all angle[s].
5. Complainant also questioned the absence of notation of the
residence certificates of the purported witnesses Noynay and Grajo.He
alleged that their signatures had likewise been forged and merely copied from
their respective voters affidavits.
6. Respondent in his comment claimed that the complaint against him
contained false allegations. He alleged that complainant was
not a legitimate son of Vicente Lee Sr. and that the last will and testament
was validly executed and actually notarized by respondent per affidavit of
Cloria Nebato, common-law wife of Vicente Lee Sr. and corroborated by the
joint affidavit of the children of Vicente Lee Sr., namely Elena N. Lee and
Vicente N. Lee.7. The investigating commissioner found respondent guilty of
violation of pertinent provisions of the old Notarial Law as found in the
Revised Administrative Code. Thus, the investigating commissioner of the IBP
commission on Bar Discipline recommended the suspension of respondent
for a period of three months.
ISSUE: Whether or not the investigating commissioner erred in finding
respondent guilty.
Held: No. A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree, the disposition of his estate,
to take effect after his death. A will may be either notarial or holographic.
The law provides for certain formalities that must be followed in the
execution of wills. The object of solemnities surrounding the execution of wills
is to close the door on bad faith and fraud, to avoid substitution of wills and
testaments, and to guarantee their truth and authenticity.
A notarial will, as the contested will in this case, is required by law to
be subscribed at the end thereof by the testator himself. In addition, it should
be attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another. The will in question was attested
by only two witnesses. On this circumstance alone, the will must be
considered void. This is consonance with the rule that acts executed against
the provisions of mandatory or prohibitory laws shall be void, except when the
law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged
before a notary public by the testator and the witnesses. The importance of
this requirement is highlighted by the fact that it was segregated from
the other requirements under Article 805 and embodied in a distinct and
separate provision. 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. It involves an extra step undertaken whereby the signatory
actually declares to the notary public that the same is his or her own free act
and deed. This acknowledgment in a notarial will have two-fold purpose: (1)
to safeguard the testators wishes long after his demise, and (2) to assure that
his estate is administered in the manner that he intends it to be done.
A cursory examination of the acknowledgment of the will in question
shows that this particular requirement was neither strictly nor substantially
complied with. For one, there was the conspicuous absence of a notation of
the residence certificates of the notarial witnesses Noynay and Grajo in the
acknowledgment. Similarly, the notation of the testators old residence
certificate in the same acknowledgment was a clear breach of the law.
These omissions by respondent invalidate the will. These formalities
are mandatory and cannot be disregarded, considering the degree of
importance and evidentiary weight attached to notarized documents. A notary
public, especially a lawyer, is boundto strictly observe these elementary
requirements.In the issuance of a residence certificate, the law seeks to
establish the true and correct identity of the person to whom it is issued,as
well as the payment of residence taxes for the current year. By having
allowed decedent to exhibit an expired residence certificate,respondent failed
to comply with the requirements of the old Notarial Law and the Residence
Tax Act. As much could be said of his failure todemand the exhibition of the
residence certificates of Noynay and Grajo
Lee vs Tambago, 544 SCRA 393, February 12, 2008
Facts: Complainant, Manuel L. Lee, charged respondent, Atty. Regino B. Tambago, with
violation of Notarial Law and the Ethics of the legal profession for notarizing a will that is
alleged to be spurious in nature in containing forged signatures of his father, the decedent,
Vicente Lee Sr. and two other witnesses, which were also questioned for the unnotated
Residence Certificates that are known to be a copy of their respective voter's affidavit. In
addition to such, the contested will was executed and acknowledged before respondent on
June 30, 1965 but bears a Residence Certificate by the Testator dated January 5, 1962, which
was never submitted for filing to the Archives Division of the Records Management and
Archives Office of the National Commission for Culture and Arts (NCAA). Respondent, on
the other hand, claimed that all allegations are falsely given because he allegedly exercised
his duties as Notary Public with due care and with due regards to the provision of existing
law and had complied with elementary formalities in the performance of his duties and that
the complaint was filed simply to harass him based on the result of a criminal case against
him in the Ombudsman that did not prosper. However, he did not deny the contention of non-
filing a copy to the Archives Division of NCAA. In resolution, the court referred the case to
the IBP and the decision of which was affirmed with modification against the respondent and
in favor of the complainant.
Issue: Did Atty. Regino B. Tambago commit a violation in Notarial Law and the Ethics of
Legal Profession for notarizing a spurious last will and testament?
Held: Yes. As per Supreme Court, Atty. Regino B. Tambago is guilty of professional
misconduct as he violated the Lawyer's Oath, Rule 138 of the Rules of Court, Canon 1 and
Rule 1.01 of the Code of Professional Responsibility, Article 806 of the Civil Code and
provision of the Notarial Law. Thus, Atty. Tambago is suspended from the practice of law
for one year and his Notarial commission revoked. In addition, because he has not lived up
to the trustworthiness expected of him as a notary public and as an officer of the court, he is
perpetually disqualified from reappointments as a Notary Public.
 respondent disclaimed liability for any damage or injury considering that the falsified
DOLORES L. DELA CRUZ, A.C. No. 7781 document had been revoked and canceled.
MILAGROS L. PRINCIPE,
NARCISA L. FAUSTINO, Present: In his Report and Recommendation, the Investigating Commissioner of the
JORGE V. LEGASPI, and Office of the Commission on Bar Discipline, Integrated Bar of the Philippines (IBP),
JUANITO V. LEGASPI, QUISUMBING, J., Chairperson, found the following as established: (1) the questioned document bore the signatures
Complainants, CARPIO MORALES, and community tax certificates of, and purports to have been executed by,
TINGA, complainants and Navarro; (2) respondent indeed notarized the questioned
VELASCO, JR., and document on July 16, 2004; (3) complainants did not appear and acknowledge the
- versus - BRION, JJ. document before respondent on July 16, 2004; (4) respondent notarized the
questioned document only on Navarros representation that the signatures appearing
Promulgated: and community tax certificates were true and correct; and (5) respondent did not
ATTY. JOSE R. DIMAANO, JR., ascertain if the purported signatures of each of the complainants appearing in the
Respondent. September 12, 2008 document belonged to them.
DECISION
VELASCO, JR., J.: The Commission concluded that with respondents admission of having
notarized the document in question against the factual backdrop as thus established,
In their complaint for disbarment against respondent Atty. Jose R. Dimaano, a clear case of falsification and violation of the Notarial Law had been committed
Jr., Dolores L. Dela Cruz, Milagros L. Principe, Narcisa L. Faustino, Jorge V. when he stated in the Acknowledgment that:
Legaspi, and Juanito V. Legaspi alleged that on July 16, 2004, respondent notarized Before me, on this 16th day of July 16, 2004 at Manila,
a document denominated as Extrajudicial Settlement of the Estate with Waiver of personally came and appeared the above-named persons with their
Rights purportedly executed by them and their sister, Zenaida V.L. Navarro. respective Community Tax Certificates as follows:
Complainants further alleged that: (1) their signatures in this document were forged;
(2) they did not appear and acknowledge the document on July 16, 2004 before who are known to me to be the same persons who executed the
respondent, as notarizing officer; and (3) their purported community tax certificates foregoing instrument and they acknowledge to me that the same is
indicated in the document were not theirs. their own free act and deed. x x x

According to complainants, respondent had made untruthful statements in the
acknowledgment portion of the notarized document when he made it appear, among
other things, that complainants personally came and appeared before him and that
they affixed their signatures on the document in his presence. In the process,
complainants added, respondent effectively enabled their sister, Navarro, to assume
full ownership of their deceased parents property in Tibagan, San Miguel, Bulacan,
covered by Transfer Certificate of Title No. T-303936 and sell the same to the
Department of Public Works and Highways.
In his answer, respondent admitted having a hand in the preparation of the
document in question, but admitted having indeed notarized it. He explained that he
notarized [the] document in good faith relying on the representation and assurance
of Zenaida Navarro that the signatures and the community tax certificates appearing
in the document were true and correct. Navarro would not, according to respondent,
lie to him having known, and being neighbors of, each other for 30 years. Finally,
For the stated infraction, the Commission recommended, conformably with
the Courts ruling in Gonzales v. Ramos,1[1] that respondent be suspended from the
practice of law for one (1) year; that his notarial commission, if still existing, be
revoked; and that he be disqualified for reappointment as notary public for two (2)
years. On September 28, 2007, the IBP Board of Governors passed Resolution No.
XVIII-2007-147, adopting and approving the report and recommendation of the
Commission.
We agree with the recommendation of the Commission and the premises
holding it together. It bears reiterating that notaries public should refrain from affixing
their signature and notarial seal on a document unless the persons who signed it are
the same individuals who executed and personally appeared before the notaries
public to attest to the truth of what are stated therein, for under Section 1 of Public
Act No. 2103 or the Notarial Law, an instrument or document shall be considered
1
authentic if the acknowledgment is made in accordance with the following
requirements:
(a) The acknowledgment shall be made before a notary public
or an officer duly authorized by law of the country to take
acknowledgments of instruments or documents in the place where the
act is done. The notary public or the officer taking the
acknowledgment shall certify that the person acknowledging the
instrument or document is known to him and that he is the same
person who executed it, and acknowledged that the same is his free
act and deed. The certificate shall be made under his official seal, if
he is by law required to keep a seal, and if not, his certificate shall so
state.2[2]
Without the appearance of the person who actually executed the document in
question, notaries public would be unable to verify the genuineness of the signature
of the acknowledging party and to ascertain that the document is the partys free act
or deed.3[3] Furthermore, notaries public are required by the Notarial Law to certify
that the party to the instrument has acknowledged and presented before the notaries
public the proper residence certificate (or exemption from the residence certificate)
and to enter its number, place, and date of issue as part of certification. 4[4] Rule II,
Sec. 12 of the 2004 Rules on Notarial Practice5[5] now requires a party to the
instrument to present competent evidence of identity. Sec. 12 provides:
Sec. 12. Competent Evidence of Identity.The phrase
competent evidence of identity refers to the identification of an
individual based on:
(a) at least one current identification document issued by an
official agency bearing the photograph and signature of the individual,
such as but not limited to, passport, drivers license, Professional
Regulations Commission ID, National Bureau of Investigation
clearance, police clearance, postal ID, voters ID, Barangay
certification, Government Service Insurance System (GSIS) e-card,
Social Security System (SSS) card, Philhealth card, senior citizen
card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID,
seamans book, alien certificate of registration/immigrant certificate of
2
3
4
5 6
registration, government office ID, certificate from the National Council
for the Welfare of Disabled Persons (NCWDP), Department of Social
Welfare and Development certification [as amended by A.M. No. 02-8-
13-SC dated February 19, 2008]; or
(b) the oath or affirmation of one credible witness not privy to
the instrument, document or transaction who is personally known to
the notary public and who personally knows the individual, or of two
credible witnesses neither of whom is privy to the instrument,
document or transaction who each personally knows the individual
and shows to the notary public documentary identification.
One last note. Lawyers commissioned as notaries public are mandated to
discharge with fidelity the duties of their offices, such duties being dictated by public
policy and impressed with public interest. It must be remembered that notarization is
not a routinary, meaningless act, for notarization converts a private document to a
public instrument, making it admissible in evidence without the necessity of
preliminary proof of its authenticity and due execution. 6[6] A notarized document is by
law entitled to full credit upon its face and it is for this reason that notaries public
must observe the basic requirements in notarizing documents. Otherwise, the
confidence of the public on notorized documents will be eroded.
WHEREFORE, for breach of the Notarial Law, the notarial commission of
respondent Atty. Jose R. Dimaano, Jr., if still existing, is REVOKED. He is
DISQUALIFIED from being commissioned as notary public for a period of two (2)
years and SUSPENDED from the practice of law for a period of one (1) year,
effective upon receipt of a copy of this Decision, with WARNING that a repetition of
the same negligent act shall be dealt with more severely.
Let all the courts, through the Office of the Court Administrator, as well as the
IBP and the Office of the Bar Confidant, be notified of this Decision and be it entered
into respondents personal record.
SO ORDERED.
G.R. No. L-46892 September 30, 1981
HEIRS OF AMPARO DEL ROSARIO, plaintiffs-appellees,
vs.
AURORA O. SANTOS, JOVITA SANTOS GONZALES, ARNULFO O. SANTOS,
ARCHIMEDES O. SANTOS, ERMELINA SANTOS RAVIDA, and ANDRES O.
SANTOS, JR., defendants-appellants.
GUERRERO, J.:
The Court of Appeals, 1 in accordance with Section 31 of the Judiciary Act of 1948,
as amended, certified to Us the appeal docketed as CA-G.R. No. 56674-R
entitled "Amparo del Rosario, plaintiff-appellee, vs. Spouses Andres Santos and
Aurora Santos, defendants-appellants," as only questions of law are involved.
On January 14, 1974, Amparo del Rosario filed a complaint against the spouses
Andres F. Santos and Aurora O. Santos, for specific performance and damages
allegedly for failure of the latter to execute the Deed of Confirmation of Sale of an
undivided 20,000 square meters of land, part of Lot 1, Psu-206650, located at Barrio
Sampaloc, Tanay, Rizal, in malicious breach of a Deed of Sale (Exhibit A or 1) dated
September 28, 1964.
Amparo del Rosario died on Sept. 21, 1980 so that she is now substituted by the
heirs named in her will still undergoing probate proceedings. Andres F. Santos also
died, on Sept. 5, 1980, and he is substituted by the following heirs: Jovita Santos
Gonzales, Arnulfo O. Santos, Archimedes O. Santos, Germelina Santos Ravida, and
Andres O. Santos, Jr.
The Deed of Sale (Exh. A or 1) is herein reproduced below:
DEED OF SALE
KNOW ALL MEN BY THESE PRESENTS:
I, ANDRES F. SANTOS, of legal age, married to Aurora 0. Santos,
Filipino and resident cf San Dionisio, Paranaque, Rizal, Philippines,
for and in consideration of the sum of TWO THOUSAND (P 2,000.00)
PESOS, Philippine Currency, the receipt whereof is hereby
acknowledged, do hereby SELLS, CONVEYS, and TRANSFERS (sic)
unto Amparo del Rosario, of legal age, married to Fidel del Rosario
but with legal separation, Filipino and resident of San Dionisio,
Paranaque, Rizal, Philippines that certain 20,000 square meters to be
segregated from Lot 1 of plan Psu-206650 along the southeastern
portion of said lot, which property is more particularly described as
follows:
A parcel of land (Lot 1 as shown on plan Psu-206650, situated in the Barrio of
Sampaloc, Municipality of Tanay, Province of Rizal. Bounded on the SW., along lines
1-2-3, by Lot 80 of Tanay Public Land Subdivision, Pls-39; on the NW., along lines 3-
4-5, by Lot 2; and along lines 5-6-7-8-9-10-11, by Lot 6; on the NE., along lines 11-
12-13, by Lot 3: and along lines 13-1415, by Lot 4, all of plan Psu-206650; and on
the SE., along line 15-1, by Lot 5 of plan Psu- 206650 ... ; containing an area of ONE
HUNDRED EIGHTY ONE THOUSAND FOUR HUNDRED TWENTY (181,420)
SQUARE METERS. All points referred to are indicated on the plan and are marked
on the ground as follows:
of which above-described property, I own one-half (1/2) interest thereof being my
attorney's fee, and the said 20,000 square meters will be transferred unto the
VENDEE as soon as the title thereof has been released by the proper authority or
authorities concerned:
That the parties hereto hereby agree that the VENDOR shall execute a Deed of
Confirmation of Deed of Sale in favor of the herein VENDEE as soon as the title has
been released and the subdivision plan of said Lot 1 has been approved by the Land
Registration Commissioner.
IN WITNESS WHEREOF, I have hereunto set my hand this 28th day of September,
1964, in the City of Manila, Philippines.
s/ ANDRES F. SANTOS t/ ANDRES F. SANTOS
With My Marital Consent:
s/ Aurora O. Santos (Wife) t/ Aurora O. Santos (Wife)
SIGNED IN THE PRESENCE OF: s/ Felicitas C. Moro s/ Corona C. Venal
REPUBLIC OF THE PHILIPPINES) ) SS.
BEFORE ME, a Notary Public for and in Rizal, Philippines, personally appeared
Andres F. Santos, with Res. Cert. No. 4500027 issued at Paranaque, Rizal, on Jan.
9, 1964, B-0935184 issued at Paranaque, Rizal on April 15, 1964, and Aurora 0.
Santos, with Res. Cert. No. A-4500028 issued at Paranaque, Rizal, on Jan. 9, 1964,
giving her marital consent to this instrument, both of whom are known to me and to
me known to be the same persons who executed the foregoing instruments and they
acknowledged to me that the same is their free act and voluntary deed.
IN WITNESS WHEREOF, I have hereunto signed this instrument and affixed my
notarial seal this lst day of October, 1964, in Pasig, Rizal, Philippines.
Doc. No. 1792; Page No. 85; Book No. 19; Series of 1964.
s/ FLORENCIO LANDRITO t/ FLORENCIO LANDRITO
NOTARY PUBLIC Until December 31, 1965 2
Plaintiff claimed fulfillment of the conditions for the execution of the Deed of
Confirmation of Sale, namely: the release of the title of the lot and the approval of the
subdivision plan of said lot by the Land Registration Commission. She even
enumerated the titles with their corresponding land areas derived by defendants from
the aforesaid lot, to wit:
(a) TCT 203580 30,205 sq. meters
(b) TCT 203581 19, 790 sq. meters
(c) TCT 167568 40,775 sq. meters
In a motion to dismiss, defendants pleaded, inter alia, the defenses of lack of
jurisdiction of the court a quo over the subject of the action and lack of cause of
action allegedly because there was no allegation as to the date of the approval of the
subdivision plan, no specific statement that the titles therein mentioned were curved
out of Lot I and no clear showing when the demands were made on the defendants.
They likewise set up the defense of prescription allegedly because the deed of sale
was dated September 28, 1964 and supposedly ratified October 1, 1964 but the
complaint was filed only on January 14, 1974, a lapse of more than nine years when
it should have been filed within five years from 1964 in accordance with Article 1149,
New Civil Code.
Defendant also claimed that the demand set forth in the complaint has been waived,
abandoned or otherwise extinguished. It is alleged that the deed of sale was "only an
accommodation graciously extended, out of close friendship between the defendants
and the plaintiff and her casual business partner in the buy and sell of real estate,
one Erlinda Cortez;" 3 that in order to allay the fears of plaintiff over the non-collection
of the debt of Erlinda Cortez to plaintiff in various sums exceeding P 2,000.00,
defendants, who were in turn indebted to Erlinda Cortez in the amount of P 2,000.00,
voluntarily offered to transfer to plaintiff their inexistent but expectant right over the
lot in question, the same to be considered as part payment of Erlinda Cortez'
indebtedness; that as Erlinda Cortez later on paid her creditor what was then due,
the deed of sale had in effect been extinguished. Defendants thereby characterized
the said deed of sale as a mere tentative agreement which was never intended nor
meant to be ratified by and acknowledged before a notary public. In fact, they
claimed that they never appeared before Notary Public Florencio Landrito.
Finally, defendants alleged that the claim on which the action or suit is founded is
unenforceable under the statute of frauds and that the cause or object of the contract
did not exist at the time of the transaction.
After an opposition and a reply were filed by the respective parties, the Court a
quo resolved to deny the motion to dismiss of defendants. Defendants filed their
answer with counterclaim interposing more or less the same defenses but
expounding on them further. In addition, they claimed that the titles allegedly derived
by them from Lot 1 of Annex A or I were cancelled and/or different from said Lot I and
that the deed of sale was simulated and fictitious, plaintiff having paid no amount to
defendants; and that the deed was entrusted to plaintiff's care and custody on the
condition that the latter; (a) would secure the written consent of Erlinda Cortez to
Annex A or I as part payment of what she owed to plaintiff; (b) would render to
defendants true accounting of collections made from Erlinda showing in particular the
consideration of 2,000.00 of Annex A or I duly credited to Erlinda's account. 4
Plaintiff filed a reply and answer to counterclaim and thereafter a motion for summary
judgment and/or judgment on the pleadings on the ground that the defenses of
defendants fail to tender an issue or the same do not present issues that are serious
enough to deserve a trial on the merits, 5 submitting on a later date the affidavit of
merits. Defendants filed their corresponding opposition to the motion for summary
judgment and/or judgment on the pleadings. Not content with the pleadings already
submitted to the Court, plaintiff filed a reply while defendants filed a supplemental
opposition.
With all these pleadings filed by the parties in support of their respective positions,
the Court a quo still held in abeyance plaintiff's motion for summary judgment or
judgment on the pleadings pending the pre-trial of the case. At the pre-trial,
defendants offered by way of compromise to pay plaintiff the sum of P2,000.00, the
consideration stated in the deed of sale. But the latter rejected the bid and insisted
on the delivery of the land to her. Thus, the pre-trial proceeded with the presentation
by plaintiff of Exhibits A to Q which defendants practically admitted, adopted as their
own and marked as Exhibits 1 to 17. In addition, the latter offered Exhibit 18, which
was their reply to plaintiff's letter of demand dated December 21, 1973.
From the various pleadings filed in this case by plaintiff, together with the annexes
and affidavits as well as the exhibits offered in evidence at the pre-trial, the Court a
quo found the following facts as having been duly established since defendant failed
to meet them with countervailing evidence:
In February, 1964, Teofilo Custodia owner of a parcel of unregistered
land with an area of approximately 220,000 square meters in Barrio
Sampaloc, Tanay, Rizal, hired Attorney Andres F. Santos "to cause the
survey of the above-mentioned property, to file registration
proceedings in court, to appear and represent him in all government
office relative thereto, to advance all expenses for surveys, taxes to
the government, court fees, registration fees ... up to the issuance of
title in the name" of Custodia. They agreed that after the registration
Lot 1 181,420 square meters
of the title in Custodio's name, and "after deducting all expenses from
the total area of the property," Custodio would assign and deliver to
Santos "one-half (1/2) share of the whole property as appearing in the
Lot 2 7,238 square meters
certificate of title so issued." Exh. B or 2).

On March 22, 1964, Custodio's land was surveyed under plan Psu- Lot 3 7,305 square meters
226650 (Exh. D or 4). It was divided into six (6) lots, one of which was
a road lot. The total area of the property as surveyed was 211,083
square meters. The respective areas of the lots were as follows: Lot 4 5,655 square meters

Lot 5 5,235 square meters

Lot 1 181,420 square meters
In April to May, 1966, a consolidation-subdivision survey (LRC) Pcs-
5273 (Exh. E or 5) was made on the above lots converting them into
Lot 2 7,238 square meters six (6) new lots as follows:

Lot 3 7,305 square meters

Lot 1 20,000 square meters

Lot 4 5,655 square meters

Lot 2 40,775 square meters

Lot 5 5,235 square meters

Lot 3 50,000 square meters

Road Lot 6 4,230 square meters

Lot 4 40,775 square meters

TOTAL 211,083 square meters

Lot 5 50,000 square meters
On December 27, 1965, a decree of registration No. N-108022 was
issued in Land Registration Case No. N-5023, of the Court of First
Instance of Rizal, LRC Record No. N-27513, in favor of Teofilo Road Lot 6 5,303 square meters
Custodia married to Miguela Perrando resident of Tanay, Rizal. On
March 23, 1966, Original Certificate of Title No. 5134 (Exh. Q or 17)
was issued to Custodio for Lots 1, 2, 3, 4 and 5, Psu- 206650, with a TOTAL 206,853 square meters
total area of 206,853 square meters. The areas of the five (5) lots
were as follows: On June 22, 1966, the consolidation-subdivision plan (LRC) Pcs-5273
(Exh. E or 5) was approved by the Land Registration Commission and
by the Court of First Instance of Rizal in an order dated July 2, 1966
 (Entry No. 61037 T-167561, Exh. Q). Upon its registration, Custodio's
O.C.T. No. 5134 (Exh. Q) was cancelled and TCT Nos. 167561,
TCT No. 167585 for
167562, 167563, 167564 (Exh. G), 167565 (Exh. H and 167566 were
issued for the six lots in the name of Custodio (Entry No. 61035, Exh.
Q).
Lot 4 Pcs-5273 40,775 sq. m.
On June 23, 1966, Custodio conveyed to Santos Lots 4 and 5, Pcs-
5273 with a total area of 90,775 square meters (Exh. B or 2) (Exh. J or 10)
described in Custodio's TCT No. 167564 (Exh. G or 7) and TCT No.
167565 (Exh. H or 8), plus a one-half interest in the Road Lot No. 6,
as payment of Santos' attorney's fees and advances for the TCT No. 203580 for
registration of Custodio's land.

Upon registration of the deed of conveyance on July 5, 1966, Lot 5-A Psd-78008 30,205 sq. m.
Custodio's TCT Nos. 167564 and 167565 (Exhs. G and H) were
cancelled. TCT No. 167568 (Exh. I or 9) for Lot 4 and TCT No.
167585 (Exh. J or 10) for Lot 5 were issued to Santos. (Exh. K or 11)

On September 2, 1967, Santos' Lot 5, with an area of 50,000 square

meters was subdivided into two (2) lots, designated as Lots 5-A and 5- TCT No. 203581 for
B in the plan Psd-78008 (Exh. F or 6), with the following areas:

Lot 5-B Psd-78008 19,795 sq. m.

Lot 5-A 30,205 square meters

(Exh. L or 12)

Lot 5-B 19,795 square meters

TOTAL 50,000 square meters
Upon registration of Psd-78008 on October 3, 1967, Santos' TCT No.
167585 (Exh. J) was cancelled and TCT No. 203578 for Lot 5- A and
TCT No. 203579 for Lot 5-B were supposed to have been issued to
Santos (See Entry 6311 in Exh. J or 10). Actually, TCT No. 203580
was issued for Lot 5-A (Exh. K or 1 1), and TCT No. 203581 for Lot 5-
B (Exh. L or 12), both in the name of Andres F. Santos.
90,775 sq.m.
plus one-half of the road lot, Lot 6, PCS-5273, with an area of 5,303
square meters, which is registered jointly in the name of Santos and
Custodio (Exh. B & E) 6
The court a quo thereupon concluded that there are no serious factual issues
involved so the motion for summary judgment may be properly granted. Thereafter, it
proceeded to dispose of the legal issues raised by defendants and rendered
judgment in favor of plaintiff. The dispositive portion of the decision states as follows:

Out of Custodio's original Lot 1, Psu-206650, with an area of 181,420 WHEREFORE, defendants Andres F. Santos and Aurora Santos are
square meters, Santos was given a total of 90,775 square meters, ordered to execute and convey to plaintiff Amparo del Rosario, within
registered in his name as of October 3, 1967 under three (3) titles, ten (10) days from the finality of this decision, 20,000 square meters
namely: of land to be taken from the southeastern portion of either Lot 4, Pcs-
 5273, which has an area of 40,775 square meters, described in TCT
No. 167568 (Exh. I or 9) of from their LOL 5-A. with an area of 30,205
square meters, described in TCI No. 203; O (Exh. K or 11). The
expenses of segregating the 20,000 square meters portion shall be
borne fqually by the parties. rhe expenses for the execution and
registration of the sale shall be borne by the defendants (Art. 1487,
Civil Code). Since the defendants compelled the plaintiff to litigate and
they failed to heed plainliff's just demand, they are further ordered to
pay the plaintiff the sum of P2,000.00 as attorney's fees and the costs
of this action.
SO ORDERED. 7
Aggrieved by the aforesaid decision, the defendant's filed all appeal to the Court of
Appeals submitting for resolution seven assignments of errors, to wit:
I. The lower court erred in depriving the appellants of their right to the
procedural due process.
II. The lower court erred in holding that the appellee's claim has not
been extinguished.
III. The lower court erred in sustaining appellee's contention that there
are no other unwritten conditions between the appellants and the
appellee except those express in Exh. "1" or "A", and that Erlinda
Cortez' conformity is not required to validate the appellants' obligation.
IV. The lower court erred in holding that Exh. "l" or "A" is not infirmed
and expressed the true intent of the parties.
V. The lower court erred in declaring that the appellants are co-owners
of the lone registered owner Teofilo Custodia.
VI. The lower court erred in ordering the appellants to execute and
convey to the appellee 20,000 sq. m. of land to be taken from the
southeastern portion of either their lot 4, Pcs-5273, which has an area
of 40,775 sq.m., described in T.C.T. No. 167568 (Exh. 9 or 1), or from
their lot No. 5-A, with an area of 30,205 sq.m. described in T.C.T. No.
203580 (Exh. 11 or K), the expenses of segregation to be borne
equally by the appellants and the appellee and the expenses of
execution and registration to be borne by the appellants.
VII. Thelowercourterredinorderingtheappellantstopayto the appellee
the sum of P2,000. 00 as attorney's fee and costs. 8
The first four revolve on the issue of the propriety of the rendition of summary
judgment by the court a quo, which concededly is a question of law. The last three
assail the summary judgment itself. Accordingly, the Court of Appeals, with whom the
appeal was filed, certified the records of the case to this Court for final determination.
For appellants herein, the rendition of summary judgment has deprived them of their
right to procedural due process. They claim that a trial on the merits is indispensable
in this case inasmuch as they have denied under oath all the material allegations in
appellee's complaint which is based on a written instrument entitled "Deed of Sale",
thereby putting in issue the due execution of said deed.
Appellants in their opposition to the motion for summary judgment and/or judgment
on the pleadings, however, do not deny the genuineness of their signatures on the
deed of sale.
(Par. 3 of said Motion, p. 101, Record on Appeal). They do not contest the words and
figures in said deed except in the acknowledgment portion thereof where certain
words were allegedly cancelled and changed without their knowledge and consent
and where, apparently, they appeared before Notary Public Florencio Landrito when,
in fact, they claimed that they did not. In effect, there is an admission of the due
execution and genuineness of the document because by the admission of the due
execution of a document is meant that the party whose signature it bears admits that
voluntarily he signed it or that it was signed by another for him and with his authority;
and the admission of the genuineness of the document is meant that the party
whose signature it bears admits that at the time it was signed it was in the words and
figures exactly as set out in the pleading of the party relying upon it; and that any
formal requisites required by law, such as swearing and acknowledgment or revenue
stamps which it requires, are waived by him. 9
As correctly pointed out by the court a quo, the alleged false notarization of the deed
of sale is of no consequence. For a sale of real property or of an interest therein to
be enforceable under the Statute of Frauds, it is enough that it be in writing. 10 It need
not be notarized. But the vendee may avail of the right under Article 1357 of the New
Civil Code to compel the vendor to observe the form required by law in order that the
instrument may be registered in the Registry of Deeds. 11 Hence, the due execution
and genuineness of the deed of sale are not really in issue in this case. Accordingly,
assigned error I is without merit.
What appellants really intended to prove through the alleged false notarization of the
deed of sale is the true import of the matter, which according to them, is a mere
tentative agreement with appellee. As such, it was not intended to be notarized and
was merely entrusted to appellee's care and custody in order that: first, the latter
may secure the approval of one Erlinda Cortez to their (appellants') offer to pay a
debt owing to her in the amount of P2,000.00 to appellee instead of paying directly to
her as she was indebted to appellee in various amounts exceeding P2,000.00; and
second once the approval is secured, appellee would render an accounting of
collections made from Erlinda showing in particular the consideration of P2,000.00 of
the deed of sale duly credited to Erlinda's account.
According to appellants, they intended to prove at a full dress trial the material facts:
(1) that the aforesaid conditions were not fulfilled; (2) that Erlinda Cortez paid her
total indebtedness to appellee in the amount of P14,160.00, the P2,000.00 intended
to be paid by appellant included; and (3) that said Erlinda decided to forego,
renounce and refrain from collecting the P2,000.00 the appellants owed her as a
countervance reciprocity of the countless favors she also owes them.
Being conditions which alter and vary the terms of the deed of sale, such conditions
cannot, however, be proved by parol evidence in view of the provision of Section 7,
Rule 130 of the Rules of Court which states as follows:
Sec. 7. Evidence of written agreements when the terms of an
agreement have been reduced to writing, it is to be considered as
containing all such terms, and, therefore, there can be, between the
parties and their successors in interest, no evidence of the terms of
the agreement other than the contents of the writing, except in the
following cases:
(a) Where a mistake or imperfection of the writing, or its failure to
express the true intent and agreement of the parties, or the validity of
the agreement is put in issue by the pleadings;
(b) When there is an intrinsic ambiguity in the writing. The term
"agreement" includes wills."
The parol evidence rule forbids any addition to or contradiction of the terms of a
written instrument by testimony purporting to show that, at or before the signing of
the document, other or different terms were orally agreed upon by the parties. 12
While it is true, as appellants argue, that Article 1306 of the New Civil Code provides
that "the contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided that they are not contrary to law,
morals, good customs, public order, or public policy" and that consequently,
appellants and appellee could freely enter into an agreement imposing as conditions
thereof the following: that appellee secure the written conformity of Erlinda Cortez
and that she render an accounting of all collections from her, said conditions may not
be proved as they are not embodied in the deed of sale.
The only conditions imposed for the execution of the Deed of Confirmation of Sale by
appellants in favor of appellee are the release of the title and the approval of the
subdivision plan. Thus, appellants may not now introduce other conditions allegedly
agreed upon by them because when they reduced their agreement to writing, it is
presumed that "they have made the writing the only repository and memorial of truth,
and whatever is not found in the writing must be understood to have been waived
and abandoned." 13
Neither can appellants invoke any of the exceptions to the parol evidence rule, more
particularly, the alleged failure of the writing to express the true intent and agreement
of the parties. Such an exception obtains where the written contract is so ambiguous
or obscure in terms that the contractual intention of the parties cannot be understood
from a mere reading of the instrument. In such a case, extrinsic evidence of the
subject matter of the contract, of the relations of the parties to each other, and of the
facts and circumstances surrounding them when they entered into the. contract may
be received to enable the court to make a proper interpretation of the
instrumental. 14 In the case at bar, the Deed of Sale (Exh. A or 1) is clear, without any
ambiguity, mistake or imperfection, much less obscurity or doubt in the terms thereof.
We, therefore, hold and rule that assigned errors III and IV are untenable.
According to the court a quo, "(s)ince Santos, in his Opposition to the Motion for
Summary Judgment failed to meet the plaintiff's evidence with countervailing
evidence, a circumstance indicating that there are no serious factual issues involved,
the motion for summary judgment may properly be granted." We affirm and sustain
the action of the trial court.
Indeed, where a motion for summary judgment and/or judgment on the pleadings
has been filed, as in this case, supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as may be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify as to the matters stated
therein. Sworn or certified copies of all papers or parts thereof referred to in the
affidavitshalibeattachedtheretoorservedtherewith. 15Examining the pleadings,
affidavits and exhibits in the records, We find that appellants have not submitted any
categorical proof that Erlinda Cortez had paid the P2,000.00 to appellee, hence,
appellants failed to substantiate the claim that the cause of action of appellee has
been extinguished. And while it is true that appellants submitted a receipt for
P14,160.00 signed by appellee, appellants, however, have stated in their answer
with counterclaim that the P2,000.00 value of the property covered by the Deed of
Sale, instead of being credited to Erlinda Cortez, was conspicuously excluded from
the accounting or receipt signed by appellee totalling P14,160.00. The aforesaid
receipt is no proof that Erlinda Cortez subsequently paid her P2,000.00 debt to
appellee. As correctly observed by the court a quo, it is improbable that Cortez would
still pay her debt to appellee since Santos had already paid it.
Appellants' claim that their P2,000.00 debt to Erlinda Cortez had been waived or
abandoned is not also supported by any affidavit, document or writing submitted to
the court. As to their allegation that the appellee's claim is barred by prescription, the
ruling of the trial court that only seven years and six months of the ten-year
prescription period provided under Arts. 1144 and 155 in cases of actions for specific
performance of the written contract of sale had elapsed and that the action had not
yet prescribed, is in accordance with law and, therefore, We affirm the same.
The action of the court a quo in rendering a summary judgment has been taken in
faithful compliance and conformity with Rule 34, Section 3, Rules of Court, which
provides that "the judgment sought shall be rendered forthwith if the pleadings,
depositions, and admissions on file together with the affidavits, show that, except as
to the amount of damages, there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law. "
Resolving assignments of errors, V, VI, and VII which directly assail the summary
judgment, not the propriety of the rendition thereof which We have already resolved
to be proper and correct, it is Our considered opinion that the judgment of the court a
quo is but a logical consequence of the failure of appellants to present any bona
fide defense to appellee's claim. Said judgment is simply the application of the law to
the undisputed facts of the case, one of which is the finding of the court a quo, to
which We agree, that appellants are owners of one-half (1/2) interest of Lot I and,
therefore, the fifth assignment of error of appellants is without merit. By the terms of
the Deed of Sale itself, which We find genuine and not infirmed, appellants declared
themselves to be owners of one-half (1/2) interest thereof. But in order to avoid
appellee's claim, they now contend that Plan Psu-206650 where said Lot I appears is
in the exclusive name of Teofilo Custodio as the sole and exclusive owner thereof
and that the deed of assignment of one-half (1/2) interest thereof executed by said
Teofilo Custodio in their favor is strictly personal between them. Notwithstanding the
lack of any title to the said lot by appellants at the time of the execution of the deed
of sale in favor of appellee, the said sale may be valid as there can be a sale of an
expected thing, in accordance with Art. 1461, New Civil Code, which states:
Art. 1461. Things having a potential existence may be the object of the contract of
sale.The efficacy of the sale of a mere hope or expectancy is deemed subject to the
condition that the thing will come into existence.The sale of a vain hope or
expectancy is void.
In the case at bar, the expectant right came into existence or materialized for the
appellants actually derived titles from Lot I .
We further reject the contention of the appellants that the lower court erred in
ordering the appellants to execute and convey to the appellee 20,000 sq.m. of land
to be taken from the southeastern portion of either their Lot 4, Pcs-5273, which has
an area of 40,775 sq.m., described in T.C.T. No. 167568 (Exh. 9 or 1), or from their
Lot No. 5-A, with an area of 30,205 sq.m. described in T.C.T. No. 203580 (Exh. 11 or
K), the expenses of segregation to be borne equally by the appellants and the
appellee and the expenses of execution and registration to be borne by the
appellants. Their argument that the southeastern portion of Lot 4 or Lot 5-A is no
longer the southeastern portion of the bigger Lot 1, the latter portion belonging to the
lone registered owner, Teofilo Custodia is not impressed with merit. The subdivision
of Lot I between the appellants and Teofilo Custodio was made between themselves
alone, without the intervention, knowledge and consent of the appellee, and
therefore, not binding upon the latter. Appellants may not violate nor escape their
obligation under the Deed of Sale they have agreed and signed with the appellee b3
simply subdividing Lot 1, bisecting the same and segregating portions to change
their sides in relation to the original Lot 1.
Finally, considering the trial court's finding that the appellants compelled the appellee
to litigate and they failed to heed appellee's just demand, the order of the court
awarding the sum of P2,000.00 as attorney's fees is just and lawful, and We affirm
the same.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED in toto, with costs against the appellants.SO ORDERED.
FACTS: Amparo Del Rosario entered into a contract with Atty. Andres
Santos and his wife Aurora Santos whereby the latter sold to the former a
20,000 sq. m. of land which is to be segregated from Lot 1. Said lot forms
part of the several lots belonging to a certain Teofilo Custodio, of which
lots, Attorney Santos, by agreement with the latter, as his attorneys fees,
owns interests thereof. Parties agreed that spouses Andres shall
thereafter execute a Deed of Confirmation of Sale in favor of Del Rosario
as soon as the title has been released and the subdivision plan of said Lot
1 has been approved by the Land Registration Commissioner. Due to the
failure of the spouses Andres to execute the deed after the fulfilment of
the condition, Del Rosario claims malicious breach of a Deed of Sale.
Defendant thereafter filed a motion to dismiss setting up the defenses of
lack of jurisdiction of the court over the subject of the action lack of cause
of action as well as the defense of prescription. They further alleged that
the deed of sale was only an accommodation graciously extended, out of
close friendship between the defendants and the plaintiff, hence,
tantamount to waiver, abandonment or otherwise extinguishment of the
demand set forth in the complaint. Finally, defendants alleged that the
claim on which the action or suit is founded is unenforceable under the
statute of frauds and that the cause or object of the contract did not exist
at the time of the transaction. The lower court resolved to deny the
motion to dismiss. After actions by respective parties, the lower court
ordered the defendants to execute and convey to plaintiff the 200,000 sq.
m. of land to be taken either from Lot 4 or from Lot 5-A of Custodios lots,
which defendants own interest thereof. Aggrieved by the aforesaid
decision, the defendants filed an appeal with the Court of Appeals which
certified the records of the case to the Supreme Court for final
determination.
ISSUE: WON THE SALE IS VALID AS TO THE CAUSE OR OBJECT OF
THE CONTRACT.
HELD: Yes. The Supreme Court held that the execution of the Deed of
Sale is valid notwithstanding the lack of any title to the lot by appellants
at the time of execution of the Deed of Sale in favor of appellee as there
can be a sale of an expected thing in accordance with Article 1461 of the
NCC: Article 1461: Things having a potential existence may be the object
of the contract of sale. The efficacy of the sale of a mere hope of
expectancy is deemed subject to the condition that the thing will come
into existence. The sale of a vain hope or expectancy is void. The case at
bar is not a case of a vain hope or expectancy which is void under the law.
The expectant right came into existence or materialized for the appellants
actually derived titles from Lot 1which subsequently became the object of
subdivision.
G.R. NO. 140608 September 23, 2004
PERMANENT SAVINGS AND LOAN BANK, petitioner,
vs.
MARIANO VELARDE, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
In a complaint for sum of money filed before the Regional Trial Court of Manila
(Branch 37), docketed as Civil Case No. 94-71639, petitioner Permanent Savings
and Loan Bank sought to recover from respondent Mariano Velarde, the sum
of P1,000,000.00 plus accrued interests and penalties, based on a loan obtained by
respondent from petitioner bank, evidenced by the following: (1) promissory note
dated September 28, 1983;1 (2) loan release sheet dated September 28, 1983;2 and
(3) loan disclosure statement dated September 28, 1983.3Petitioner bank,
represented by its Deputy Liquidator after it was placed under liquidation, sent a
letter of demand to respondent on July 27, 1988, demanding full payment of the
loan.4 Despite receipt of said demand letter,5respondent failed to settle his account.
Another letter of demand was sent on February 22, 1994,6 and this time,
respondents counsel replied, stating that the obligation "is not actually existing but
covered by contemporaneous or subsequent agreement between the parties "7
In his Answer, respondent disclaims any liability on the instrument, thus:
2. The allegations in par. 2, Complaint, on the existence of the alleged loan
of P1-Million, and the purported documents evidencing the same, only the
signature appearing at the back of the promissory note, Annex "A" seems to
be that of herein defendant. However, as to any liability arising therefrom, the
receipt of the said amount of P1-Million shows that the amount was received
by another person, not the herein defendant. Hence, no liability attaches and
as further stated in the special and affirmative defenses that, assuming the
promissory note exists, it does not bind much less is there the intention by the
parties to bind the herein defendant. In other words, the documents relative to
the loan do not express the true intention of the parties.8
Respondents Answer also contained a denial under oath, which reads:
I, MARIANO Z. VELARDE, of age, am the defendant in this case, that I
caused the preparation of the complaint and that all the allegations thereat
are true and correct; that the promissory note sued upon, assuming that it
exists and bears the genuine signature of herein defendant, the same does
not bind him and that it did not truly express the real intention of the parties
as stated in the defenses; 9
During pre-trial, the issues were defined as follows:
1. Whether or not the defendant has an outstanding loan obligation granted
by the plaintiff;
2. Whether or not the defendant is obligated to pay the loan including
interests and attorneys fees;
 3. Whether or not the defendant has really executed the Promissory Note
considering the doubt as to the genuineness of the signature and as well as
the non-receipt of the said amount;
4. Whether or not the obligation has prescribed on account of the lapse of
time from date of execution and demand for enforcement; and
5. Whether or not the defendant is entitled to his counterclaim and other
damages.10
On September 6, 1995, petitioner bank presented its sole witness, Antonio Marquez,
the Assistant Department Manager of the Philippine Deposit Insurance Corporation
(PDIC) and the designated Deputy Liquidator for petitioner bank, who identified the
Promissory Note11 dated September 28, 1983, the Loan Release Sheet12dated
September 28, 1983, and the Disclosure Statement of Loan Credit Transaction.13
After petitioner bank rested its case, respondent, instead of presenting evidence,
filed with leave of court his demurrer to evidence, alleging the grounds that:
(a) PLAINTIFF FAILED TO PROVE ITS CASE BY PREPONDERANCE OF
EVIDENCE.
(b) THE CAUSE OF ACTION, CONCLUDING ARGUENTI THAT IT EXISTS,
IS BARRED BY PRESCRIPTION AND/OR LACHES.14
The trial court, in its Decision dated January 26, 1996, found merit in respondents
demurrer to evidence and dismissed the complaint including respondents
counterclaims, without pronouncement as to costs.15
On appeal, the Court of Appeals agreed with the trial court and affirmed the dismissal
of the complaint in its Decision16 dated October 27, 1999.17 The appellate court found
that petitioner failed to present any evidence to prove the existence of respondents
alleged loan obligations, considering that respondent denied petitioners allegations
in its complaint. It also found that petitioner banks cause of action is already barred
by prescription.18
Hence, the present petition for review on certiorari under Rule 45 of the Rules Court,
with the following assignment of errors:
4.1
THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER
FAILED TO ESTABLISH THE GENUINENESS, DUE EXECUTION AND
AUTHENTICITY OF THE SUBJECT LOAN DOCUMENTS.
4.2
THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS
CAUSE OF ACTION IS ALREADY BARRED BY PRESCRIPTION AND OR
LACHES.19
Before going into the merits of the petition, the Court finds it necessary to reiterate
the well-settled rule that only questions of law may be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court, as "the Supreme Court is not a trier
of facts."20 It is not our function to review, examine and evaluate or weigh the
probative value of the evidence presented.21
There are, however, exceptions to the rule, e.g., when the factual inferences of the
appellate court are manifestly mistaken; the judgment is based on a
misapprehension of facts; or the CA manifestly overlooked certain relevant and
undisputed facts that, if properly considered, would justify a different legal
conclusion.22 This case falls under said exceptions.
The pertinent rule on actionable documents is found in Rule 8, Section 7 of the Rules
of Court which provides that when the cause of action is anchored on a document,
the genuineness or due execution of the instrument shall be deemed impliedly
admitted unless the defendant, under oath, specifically denies them, and sets forth
what he claims to be the facts.
It was the trial courts opinion that:
The mere presentation of supposed documents regarding the loan, but
absent the testimony of a competent witness to the transaction and the
documentary evidence, coupled with the denial of liability by the defendant
does not suffice to meet the requisite preponderance of evidence in civil
cases. The documents, standing alone, unsupported by independent
evidence of their existence, have no legal basis to stand on. They are not
competent evidence. Such failure leaves this Court without ample basis to
sustain the plaintiffs cause of action and other reliefs prayed for. The loan
document being challenged. (sic) Plaintiff did not exert additional effort to
strengthen its case by the required preponderance of evidence. On this
score, the suit must be dismissed.23
The Court of Appeals concurred with the trial courts finding and affirmed the
dismissal of the complaint, viz.:
The bank should have presented at least a single witness qualified to
testify on the existence and execution of the documents it relied upon to
prove the disputed loan obligations of Velarde. This falls short of the
 requirement that (B)efore any private writing may be received in evidence, its
due execution and authenticity must be proved either: (a) By anyone who
saw the writing executed; (b) By evidence of the genuineness of the
handwriting of the maker; or (c) By a subscribing witness. (Rule 132, Sec. 21,
Rules of Court)
It is not true, as the Bank claims, that there is no need to prove the loan and
its supporting papers as Velarde has already admitted these. Velarde had in
fact denied these in his responsive pleading. And consistent with his denial,
he objected to the presentation of Marquez as a witness to identify the
Exhibits of the Bank, and objected to their admission when these were
offered as evidence. Though these were grudgingly admitted anyway,
still admissibility of evidence should not be equated with weight of
evidence. 24
A reading of respondents Answer, however, shows that respondent did not
specifically deny that he signed the loan documents. What he merely stated
in his Answer was that the signature appearing at the back of the promissory
note seems to be his. Respondent also denied any liability on the promissory
note as he allegedly did not receive the amount stated therein, and the loan
documents do not express the true intention of the parties.25 Respondent
reiterated these allegations in his "denial under oath," stating that "the
promissory note sued upon, assuming that it exists and bears the genuine
signature of herein defendant, the same does not bind him and that it did not
truly express the real intention of the parties as stated in the defenses "26
Respondents denials do not constitute an effective specific denial as contemplated
by law. In the early case of Songco vs. Sellner,27 the Court expounded on how to
deny the genuineness and due execution of an actionable document, viz.:
This means that the defendant must declare under oath that he did not
sign the document or that it is otherwise false or fabricated. Neither does the
statement of the answer to the effect that the instrument was procured by
fraudulent representation raise any issue as to its genuineness or due
execution. On the contrary such a plea is an admission both of the
genuineness and due execution thereof, since it seeks to avoid the
instrument upon a ground not affecting either.
In fact, respondents allegations amount to an implied admission of the due
execution and genuineness of the promissory note. The admission of the
genuineness and due execution of a document means that the party whose
signature it bears admits that he voluntarily signed the document or it was signed by
another for him and with his authority; that at the time it was signed it was in words
and figures exactly as set out in the pleading of the party relying upon it; that the
document was delivered; and that any formalities required by law, such as a seal, an
acknowledgment, or revenue stamp, which it lacks, are waived by him.28 Also, it
effectively eliminated any defense relating to the authenticity and due execution of
the document, e.g., that the document was spurious, counterfeit, or of different
import on its face as the one executed by the parties; or that the signatures
appearing thereon were forgeries; or that the signatures were unauthorized.29
Clearly, both the trial court and the Court of Appeals erred in concluding that
respondent specifically denied petitioners allegations regarding the loan documents,
as respondents Answer shows that he failed to specifically deny under oath the
genuineness and due execution of the promissory note and its concomitant
documents. Therefore, respondent is deemed to have admitted the loan documents
and acknowledged his obligation with petitioner; and with respondents implied
admission, it was not necessary for petitioner to present further evidence to establish
the due execution and authenticity of the loan documents sued upon.
While Section 22, Rule 132 of the Rules of Court requires that private documents be
proved of their due execution and authenticity before they can be received in
evidence, i.e., presentation and examination of witnesses to testify on this fact; in the
present case, there is no need for proof of execution and authenticity with respect to
the loan documents because of respondents implied admission thereof.30
Respondent claims that he did not receive the net proceeds in the amount
of P988,333.00 as stated in the Loan Release Sheet dated September 23,
1983.31 The document, however, bears respondents signature as borrower.32 Res
ipsa loquitur.33 The document speaks for itself. Respondent has already impliedly
admitted the genuineness and due execution of the loan documents. No further proof
is necessary to show that he undertook the obligation with petitioner. "A person
cannot accept and reject the same instrument."34
The Court also finds that petitioners claim is not barred by prescription.
Petitioners action for collection of a sum of money was based on a written contract
and prescribes after ten years from the time its right of action arose.35 The
prescriptive period is interrupted when there is a written extrajudicial demand by the
creditors.36 The interruption of the prescriptive period by written extrajudicial demand
means that the said period would commence anew from the receipt of the demand.37
Thus, in the case of The Overseas Bank of Manila vs. Geraldez,38 the Court
categorically stated that the correct meaning of interruption as distinguished from
mere suspension or tolling of the prescriptive period is that said period would
commence anew from the receipt of the demand. In said case, the respondents
Valenton and Juan, on February 16, 1966, obtained a credit accommodation from the
Overseas Bank of Manila in the amount of P150,000.00. Written extrajudicial
demands dated February 9, March 1 and 27, 1968, November 13 and December 8,
1975 and February 7 and August 27, 1976 were made upon the respondents but
they refused to pay. When the bank filed a case for the recovery of said amount, the
trial court dismissed the same on the ground of prescription as the bank's cause of
action accrued on February 16, 1966 (the date of the manager's check
for P150,000.00 issued by the plaintiff bank to the Republic Bank) and the complaint
was filed only on October 22, 1976. Reversing the ruling of the trial court, the Court
ruled:
An action upon a written contract must be brought within ten years from the
time the right of action accrues (Art. 1144[1], Civil Code). "The prescription of
actions is interrupted when they are filed before the court, when there is a
written extrajudicial demand by the creditors, and when there is any written
acknowledgment of the debt by the debtor" (Art. 1155, Ibid, applied in
Gonzalo Puyat & Sons, Inc. vs. City of Manila, 117 Phil. 985, 993; Philippine
National Bank vs. Fernandez, L-20086, July 10, 1967, 20 SCRA 645, 648;
Harden vs. Harden, L-22174, July 21, 1967, 20 SCRA 706, 711).
A written extrajudicial demand wipes out the period that has already elapsed
and starts anew the prescriptive period. Giorgi says: "La interrupcion difiere
de la suspension porque borra el tiempo transcurrido anteriormente y obliga
a la prescripcion a comenzar de nuevo" (9 Teoria de las Obligaciones, 2nd
Ed., p. 222). "La interrupcion . . . quita toda eficacia al tiempo pasado y abre
camino a un computo totalmente nuevo, que parte del ultimo momento del
acto interruptivo, precisamente, como si en aquel momento y no antes
hubiese nacido el credito" (8 Giorgi, ibid pp. 390-2).
and demandable on October 13, 1983, up to the time the demand was made, only 4
That same view as to the meaning of interruption was adopted in Florendo
vs. Organo, 90 Phil. 483, 488, where it ruled that the interruption of the ten-
year prescriptive period through a judicial demand means that "the full period
of prescription commenced to run anew upon the cessation of the
suspension". "When prescription is interrupted by a judicial demand, the full
time for the prescription must be reckoned from the cessation of the
interruption" (Spring vs. Barr, 120 So. 256 cited in 54 C.J.S. 293, note 27).
That rule was followed in Nator and Talon vs. CIR, 114 Phil. 661, Sagucio vs.
Bulos, 115 Phil. 786 and Fulton Insurance Co. vs. Manila Railroad Company,
L-24263, November 18, 1967, 21 SCRA 974, 981.
Interruption of the prescriptive period as meaning renewal of the original term
seems to be the basis of the ruling in Ramos vs. Condez, L-22072, August
30, 1967, 20 SCRA 1146, 1151. In that case the cause of action accrued on
June 25, 1952. There was a written acknowledgment by the vendors on
November 10, 1956 of the validity of the deed of sale.
In National Marketing Corporation vs. Marquez, L-25553, January 31, 1969, 26
SCRA 722, it appears that Gabino Marquez executed on June 24, 1950 a promissory
note wherein he bound himself to pay to the Namarco P12,000 in installments within
the one-year period starting on June 24, 1951 and ending on June 25, 1952. After
making partial payments on July 7, 1951 and February 23, 1952, Marquez defaulted.
His total obligation, including interest, as of October 31, 1964, amounted
to P19,990.91. Written demands for the payment of the obligation were made upon
Marquez and his surety on March 22, 1956, February 16, 1963, June 10, September
18 and October 13, 1964. Marquez did not make any further payment.
The Namarco sued Marquez and his surety on December 16, 1964. They contended
that the action had prescribed because the ten-year period for suing on the note
expired on June 25, 1962. That contention was not sustained. It was held that the
prescriptive period was interrupted by the written demands, copies of which were
furnished the surety.
Respondents obligation under the promissory note became due and demandable on
October 13, 1983. On July 27, 1988, petitioners counsel made a written demand for
petitioner to settle his obligation. From the time respondents obligation became due
years, 9 months and 14 days had elapsed. The prescriptive period then commenced
anew when respondent received the demand letter on August 5, 1988.39 Thus, when
petitioner sent another demand letter on February 22, 1994,40 the action still had not
yet prescribed as only 5 years, 6 months and 17 days had lapsed. While the records
do not show when respondent received the second demand letter, nevertheless, it is
still apparent that petitioner had the right to institute the complaint on September 14,
1994, as it was filed before the lapse of the ten-year prescriptive period.
Lastly, if a demurrer to evidence is granted but on appeal the order of dismissal is
reversed, the movant shall be deemed to have waived the right to present
evidence.41 The movant who presents a demurrer to the plaintiffs evidence retains
the right to present their own evidence, if the trial court disagrees with them; if the
trial court agrees with them, but on appeal, the appellate court disagrees with both of
them and reverses the dismissal order, the defendants lose the right to present their
own evidence. The appellate court shall, in addition, resolve the case and render
judgment on the merits, inasmuch as a demurrer aims to discourage prolonged
litigations.42Thus, respondent may no longer offer proof to establish that he has no
liability under the loan documents sued upon by petitioner.
The promissory note signed and admitted by respondent provides for the loan
amount of P1,000,000.00, to mature on October 13, 1983, with interest at the rate of
25% per annum. The note also provides for a penalty charge of 24% per annum of
the amount due and unpaid, and 25% attorneys fees. Hence, respondent should be
held liable for these sums.
WHEREFORE, the petition is GRANTED. The Decisions of the Regional Trial Court
of Manila (Branch 37) dated January 26, 1996, and the Court of Appeals dated
October 27, 1999 are SET ASIDE. Respondent is ordered to pay One Million Pesos
(P1,000,000.00) plus 25% interest and 24% penalty charge per annum beginning
October 13, 1983 until fully paid, and 25% of the amount due as attorneys fees.
Costs against respondent.
SO ORDERED.
DIGEST
FACTS:
Respondent obtained a loan from petitioner bank, in the sum of
P1,000,000.00 evidenced by the following: (1) promissory note dated
September 28, 1983;1 (2) loan release sheet dated September 28, 1983;2
and (3) loan disclosure statement dated September 28, 1983.3
July 27,1988, Petitioner bank, represented by its Deputy Liquidator after it
was placed under liquidation, sent a letter of demand to respondent
demanding full payment of the loan. Despite receipt of said demand letter
respondent failed to settle his account.
February 22,1994, another letter of demand was sent and this time,
respondents counsel replied, stating that the obligation "is not actually
existing but covered by contemporaneous or subsequent agreement between
the parties "
In his Answer, respondent disclaims any liability on the instrument.
September 6, 1995, petitioner bank presented its sole witness, Antonio
Marquez, the Assistant Department Manager of the Philippine Deposit
Insurance Corporation (PDIC) and the designated Deputy Liquidator for
petitioner bank, who identified the Promissory Note11 dated September 28,
1983, the Loan Release Sheet12 dated September 28, 1983, and the
Disclosure Statement of Loan Credit Transaction.
After petitioner bank rested its case, respondent, instead of presenting
evidence, filed with leave of court his demurrer to evidence, alleging the
grounds that Plaintiff failed to prove its case by preponderance of evidence
and that the cause of action, concluding arguenti that it exists is barred by
prescription and/or lache.
January 26, 1996, the trial court found merit in respondents demurrer to
evidence and dismissed the complaint including respondents counterclaims,
without pronouncement as to costs.
October 27, 1999, the Court of Appeals agreed with the trial court and
affirmed the dismissal of the complaint in its Decision. The appellate court
found that petitioner failed to present any evidence to prove the existence of
respondents alleged loan obligations, considering that respondent denied
petitioners allegations in its complaint. It also found that petitioner banks
cause of action is already barred by prescription.
ISSUE:
Whether or not the action is barred by prescription.
HELD:
The action is not barred by prescription.
Petitioners action for collection of a sum of money was based on a written contract
and prescribes after ten years from the time its right of action arose. The prescriptive
period is interrupted when there is a written extrajudicial demand by the creditors.
The interruption of the prescriptive period by written extrajudicial demand means that
the said period would commence anew from the receipt of the demand.
Respondents obligation under the promissory note became due and demandable on
October 13, 1983. On July 27, 1988, petitioners counsel made a written demand for
petitioner to settle his obligation. From the time respondents obligation became due
and demandable on October 13, 1983, up to the time the demand was made, only 4
years, 9 months and 14 days had elapsed. The prescriptive period then commenced
anew when respondent received the demand letter on August 5, 1988.39 Thus, when
petitioner sent another demand letter on February 22, 1994, the action still had not
yet prescribed as only 5 years, 6 months and 17 days had lapsed. While the records
do not show when respondent received the second demand letter, nevertheless, it is
still apparent that petitioner had the right to institute the complaint on September 14,
1994, as it was filed before the lapse of the ten-year prescriptive period.
G.R. No. 129416 November 25, 2004
ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, petitioners,
vs.
SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the
HONORABLE COURT OF APPEALS, respondents.
DECISION
TINGA, J.:
The controversy in the present petition hinges on the admissibility of a single
document, a deed of sale involving interest over real property, notarized by a person
of questionable capacity. 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. We conclude instead that the document has not been duly notarized and
accordingly reverse the Court of Appeals.
The facts are as follow:
On 11 January 1980, respondent spouses Estafino and Florentina Aquino (the
Aquinos) filed a complaint for enforcement of contract and damages against Isidro
Bustria (Bustria).1 The complaint sought to enforce an alleged sale by Bustria to the
Aquinos of a one hundred twenty thousand (120,000) square meter fishpond located
in Dasci, Pangasinan. The property was not registered either under the Land
Registration Act or under the Spanish Mortgage Law, though registrable under Act
No. 3344.2 The conveyance was covered by a Deed of Sale dated 2 September
1978.
Eventually, Bustria and the Aquinos entered into a compromise agreement, whereby
Bustria agreed to recognize the validity of the sale, and the Aquinos in turn agreed to
grant to Bustria the right to repurchase the same property after the lapse of seven (7)
years.
Upon submission, the Court of First Instance of Pangasinan, Branch VII, approved
and incorporated the compromise agreement in a Decision which it rendered on 7
September 1981.
Bustria died in October of 1986.3 On 1 December 1989, petitioner Zenaida B. Tigno
(Tigno), in substitution of her deceased father Isidro Bustria,4 attempted to
repurchase the property by filing a Motion for Consignation. She deposited the
amount of Two Hundred Thirty Thousand Pesos (P200,000.00) with the trial court,
now Regional Trial Court (RTC), Branch 55 at Alaminos, Pangasinan. On 18
December 1989, the Aquinos filed an opposition, arguing that the right to repurchase
was not yet demandable and that Tigno had failed to make a tender of payment. In
an Order dated 10 October 1999, the RTC denied the Motion for Consignation.5
In June of 1991, Tigno filed a Motion for a Writ of Execution, which was likewise
opposed by the Aquinos, and denied by the RTC. Then, on 6 September 1991, Tigno
filed an action for Revival of Judgment,6 seeking the revival of the decision in Civil
Case No. A-1257, so that it could be executed accordingly.7 The Aquinos filed an
answer, wherein they alleged that Bustria had sold his right to repurchase the
property to them in a deed of sale dated 17 October 1985.8
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. Thereafter,
in their Formal Offer of Documentary Evidence, the Aquinos offered for admission as
their Exhibit No. "8," the deed of sale (Deed of Sale)9 purportedly executed by
Bustria. The admission of the Deed of Sale was 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, and not even presented by the Aquinos when they
opposed Tigno's previous Motion for Consignation.10
In an Order dated 6 April 1994, the RTC refused to admit the Deed of Sale in
evidence.11 A Motion for Reconsideration praying for the admission of said exhibit
was denied in an Order dated 27 April 1994.12
Then, on 18 August 1994, a Decision was rendered by the RTC in favor of Tigno.
The RTC therein expressed doubts as to the authenticity of the Deed of Sale,
characterizing the testimonies of De Francia and Cario as conflicting.13 The RTC
likewise observed that nowhere in the alleged deed of sale was there any statement
that it was acknowledged by Bustria;14 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 sale15 or that Aquino had raised the matter of the deed of
sale in his previous Opposition to the Motion for Consignation.16 The RTC then
stressed that the previous Motion for Execution lodged by Tigno had to be denied
since more than five (5) years had elapsed from the date the judgment in Civil Case
No. A-1257 had become final and executory; but the judgment could be revived by
action such as the instant complaint. Accordingly, the RTC ordered the revival of the
judgment dated 7 September 1981 in Civil Case No. A-1257.17
The Aquinos interposed an appeal to the Court of Appeals.18 In the meantime, the
RTC allowed the execution pending appeal of its Decision.19 On 23 December 1996,
the Court of Appeals Tenth Division promulgated a Decision20 reversing and setting
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 jurat did not render the instrument
invalid; and that the non-assistance or representation of Bustria by counsel did not
render the document null and ineffective.21 It was noted that a notarized document
carried in its favor the presumption of regularity with respect to its due execution, and
that there must be clear, convincing and more than merely preponderant evidence to
contradict the same. Accordingly, the Court of Appeals held that the RTC erred in
refusing to admit the Deed of Sale, and that the document extinguished the right of
Bustria's heirs to repurchase the property.
After the Court of Appeals denied Tigno's Motion for Reconsideration,22 the present
petition was filed before this Court. Tigno imputes grave abuse of discretion and
misappreciation of facts to the Court of Appeals when it admitted the Deed of Sale.
He also argues that the appellate court should have declared the Deed of Sale as a
false, fraudulent and unreliable document not supported by any consideration at all.
The general thrusts of the arguments posed by Tigno are factually based. As such,
they could normally lead to the dismissal of this Petition for Review. However, while
this Court is not ordinarily a trier of facts,23 factual review may be warranted in
instances when the findings of the trial court and the intermediate appellate court are
contrary to each other.24 Moreover, petitioner raises a substantial argument regarding
the capacity of the notary public, Judge Cario, to notarize the document. The Court
of Appeals was unfortunately silent on that matter, but this Court will take it up with
definitiveness.
The notarial certification of the Deed of Sale reads as follows:
ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
PROVINCE OF PANGASINAN ) S.S.
MUNICIPALITY OF ALAMINOS )
SUBSCRIBED AND SWORN TO before me this 17th day of October 1985 at
Alaminos, Pangasinan both parties known to me to be the same parties who
executed the foregoing instrument.
FRANKLIN CARIO
Ex-Officio Notary Public
Judge, M.T.C.
Alaminos, Pangasinan
There are palpable errors in this certification. Most glaringly, the document is certified
by way of a jurat instead of an acknowledgment. A jurat is 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 jurat is that part of an affidavit where the officer certifies that the same was
sworn before him.25 Under Section 127 of the Land Registration Act,26 which has
been replicated in Section 112 of Presidential Decree No. 1529,27 the Deed of Sale
should have been acknowledged before a notary public.28
But there is an even more substantial defect in the notarization, one which is
determinative of this petition. This pertains to the authority of Judge Franklin Cario
to notarize the Deed of Sale.
It is undisputed that Franklin Cario at the time of the notarization of the Deed of
Sale, was a sitting judge of the Metropolitan Trial Court of Alaminos.29 Petitioners
point out, citing Tabao v. Asis,30 that 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.31 In response, respondents claim that the prohibition imposed on municipal
court judges from notarizing documents took effect only in December of 1989, or four
years after the Deed of Sale was notarized by Cario.32
Respondent's contention is erroneous. Municipal Trial Court (MTC) and Municipal
Circuit Trial Court (MCTC) judges are empowered to perform the functions of
notaries public ex officio under Section 76 of Republic Act No. 296, as amended
(otherwise known as the Judiciary Act of 1948) and Section 242 of the Revised
Administrative Code.33 However, as far back as 1980 in Borre v. Moya,34 the Court
explicitly declared that municipal court judges such as Cario may notarize only
documents connected with the exercise of their official duties.35 The Deed of Sale
was not connected with any official duties of Judge Cario, and there was no reason
for him to notarize it. Our observations as to the errant judge in Borre are pertinent in
this case, considering that Judge Cario identified himself in the Deed of Sale as
"Ex-Officio Notary Public, Judge, MTC:"
[A notary ex officio] should not compete with private law practitioners or
regular notaries in transacting legal conveyancing business.
In the instant case, it was not proper that a city judge should notarize documents
involving private transactions and sign the document in this wise: "GUMERSINDO
ARCILLA, Notary Public Ex-Officio, City Judge" (p. 16, Rollo, Annex D of Complaint).
In doing so, he obliterated the distinction between a regular notary and a notary ex
officio.36
There are possible grounds for leniency in connection with this matter, as Supreme
Court Circular No. I-90 permits notaries public ex officio to perform any act within the
competency of a regular notary public provided that certification be made in the
notarized documents attesting to the lack of any lawyer or notary public in such
municipality or circuit. Indeed, it is only when there are no lawyers or notaries public
that the exception applies.37The facts of this case do not warrant a relaxed attitude
towards Judge Cario's improper notarial activity. There was no such certification in
the Deed of Sale. Even if one was produced, we would be hard put to accept the
veracity of its contents, considering that Alaminos, Pangasinan, now a city,38 was
even then not an isolated backwater town and had its fair share of practicing lawyers.
There may be sufficient ground to call to task Judge Cario, who ceased being a
judge in 1986, for his improper notarial activity. Perhaps though, formal sanction may
no longer be appropriate considering Judge Cario's advanced age, assuming he is
still alive.39 However, this Decision should again serve as an affirmation of the rule
prohibiting municipal judges from notarizing documents not connected with the
exercise of their official duties, subject to the exceptions laid down in Circular No. 1-
90.
Most crucially for this case, we should deem the Deed of Sale as not having been
notarized at all. The validity of a notarial certification necessarily derives from the
authority of the notarial officer. If the notary public does not have the capacity to
notarize a document, but does so anyway, then the document should be treated as
unnotarized. The rule may strike as rather harsh, and perhaps may prove to be
prejudicial to parties in good faith relying on the proferred authority of the notary
public or the person pretending to be one. Still, to admit otherwise would render
merely officious the elaborate process devised by this Court in order that a lawyer
may receive a notarial commission. Without such a rule, the notarization of a
document by a duly appointed notary public will have the same legal effect as one
accomplished by a non-lawyer engaged in pretense.
The notarization of a document carries considerable legal effect. Notarization of a
private document converts such document into a public one, and renders it
admissible in court without further proof of its authenticity.40Thus, notarization is not
an empty routine; to the contrary, it engages public interest in a substantial degree
and the protection of that interest requires preventing those who are not qualified or
authorized to act as notaries public from imposing upon the public and the courts
and administrative offices generally.41
On the other hand, what then is the effect on the Deed of Sale if it was not
notarized? True enough, from a civil law perspective, the absence of notarization of
the Deed of Sale would 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. Thus, it has been uniformly held that the form required in
Article 1358 is not essential to the validity or enforceability of the transaction, but
required merely for convenience.42 We have even affirmed that a 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.43
Still, the Court has to reckon with the implications of the lack of valid notarization of
the Deed of Sale from the perspective of the law on evidence. After all, the case
rests on the admissibility of the Deed of Sale.
Clearly, the presumption of regularity relied upon by the Court of Appeals no longer
holds true since the Deed of Sale is not a notarized document. Its proper probative
value is governed by the Rules of Court. Section 19, Rule 132 states:
Section 19. Classes of documents.For the purpose of their presentation in
evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last wills and
testaments; and
(c) Public records, kept in the Philippines, of private documents required by
law to be entered therein.
All other writings are private. (Emphasis supplied.)
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 by Judge Cario is sufficient to
exclude the document in question from the class of public documents. Even
assuming that the Deed of Sale was 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 of jurat.
Being a private document, the Deed of Sale is 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) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the
maker.
Any other private document need only be identified as that which is claimed to be.
The Deed of Sale was offered in evidence as authentic by the Aquinos, who likewise
insist that its enforceability militates against Tigno's claim. Correspondingly, the
burden falls upon the Aquinos to prove its authenticity and due execution. The Court
of Appeals clearly erred in not appreciating the Deed of Sale as a private document
and in applying the presumption of regularity that attaches only to duly notarized
documents, as distinguished from private documents.
Did the RTC err then in refusing to admit the Deed of Sale? We hold that it did not.
Section 20, Rule 132 provides ample discretion on the trier of fact before it may
choose to receive the private document in evidence. The RTC wisely refused to
admit the Deed of Sale, taking great lengths as it did to explain its doubts as to its
veracity. The RTC was not convinced of the proffered proof by the Aquinos, and the
exercise of its sound discretion as the primary trier of fact warrants due respect.
The most telling observation of the RTC relates to the fact that for the very first time
respondents alleged the existence of the Deed of Sale when they filed their answer
to petitioner's current action to revive judgment.44 Prior to the initiation of the present
action, Tigno had tried to operationalize and implement the Compromise Agreement
through two judicial means: consignation and execution of judgment. The Aquinos
duly opposed these prior attempts of the petitioner to exercise the right to
repurchase, but they did not raise then the claim that such right to repurchase was
already extinguished by the Deed of Sale. Tigno attempted to exercise the right to
repurchase only a few years after the execution of the Deed of Sale to which
respondents themselves were signatories. Thus, it is incredulous that the Aquinos
did not invoke the Deed of Sale when they opposed in court petitioner's successive
attempts at consignation and execution of judgment. The Deed of Sale, if in
existence and valid, would have already precluded Tigno's causes of action for either
consignation or execution of judgment. The only believable conclusion, as drawn by
the RTC, was that the Deed of Sale had yet to be created when petitioner moved in
1990 for consignation and execution of judgmentan existential anomaly if we were
to agree with the respondents that such document had been signed and notarized
back in 1985.
The dubiousness in origin of the Deed of Sale is not alleviated by the other
observations of the RTC. It also pointed to certain incredible aspects in the Aquinos'
tale of events. It noted that no receipts were ever presented by the respondents to
evidence actual payment of consideration by them to Bustria, despite the allegation
of the respondents that the amount was covered by seven (7) receipts.45 The
Aquinos claimed that Bustria kept all the receipts, an assertion which the RTC found
as unbelievable, citing ordinary human nature to ask for receipts for significant
amounts given and to keep the same.46 In itself, the absence of receipts, or any proof
of consideration, would not be conclusive since consideration is always presumed.
However, given the totality of the circumstances surrounding this case, the absence
of such proof further militates against the claims of the Aquinos.
We can appreciate in a similar vein the observation of the Court of Appeals that
Bustria did not bother to seek his lawyer's assistance as regards the execution of the
Deed of Sale, considering that the subject property had previously been fiercely
litigated. Although the Court of Appeals was correct in ruling that the document would
not be rendered null or ineffective due to the lack of assistance of counsel, the
implausibility of the scenario strikes as odd and therefore reinforces the version
found by the RTC as credible.
The Court likewise has its own observations on the record that affirm the doubts
raised by the Court of Appeals. Isidro Bustria, who would die in 1986, was already
ninety-three (93) years old when he allegedly signed the Deed of Sale in 1985. Still,
the Aquinos asserted before the RTC that Bustria traveled unaccompanied from his
home in Dasol, Pangasinan, passing through two towns to Alaminos, to execute the
Deed of Sale. Without discrediting the accomplishments of nonagenarians capable of
great physical feats, it should be acknowledged as a matter of general assumption
that persons of Bustria's age are typically sedentary and rarely so foolhardy as to
insist on traveling significant distances alone.
Also of note is the fact that there are glaring differences as to the alleged signature of
Bustria on the Deed of Sale and as it otherwise appears on the judicial record.
Bustria's signature in the 1981 Compromise Agreement is noticeably shaky which is
not surprising, considering that it was subscribed when Bustria was eighty-nine (89)
years old. However, Bustria's signature on the Deed of Sale, which if genuine was
affixed when he was already ninety-three (93) years old, is remarkably steady in its
strokes. There are also other evident differences between Bustria's signature on the
Deed of Sale and on other documents on the record.
Admittedly, these doubts cast above arise in chief from an appreciation of
circumstantial evidence. These have to be weighed against the findings of the Court
of Appeals that the fact that Bustria signed the Deed of Sale was established by the
respective testimonies of witnesses De Francia and Judge Cario. In its own
appreciation of these testimonies, the RTC alluded to notable inconsistencies in their
testimonies. As a final measure of analysis, the Court shall now examine whether the
appellate court was in error in reversing the conclusion of the RTC on these
testimonies.
The inconsistencies cited by the RTC were that De Francia testified that Judge
Cario himself prepared and typed the Deed of Sale in his office, where the
document was signed,47 while Judge Cario testified that he did not type the Deed of
Sale since it was already prepared when the parties arrived at his office for the
signing.48 On this point, the Court of Appeals stated with utter nonchalance that a
perusal of the record revealed no material or substantial inconsistencies between the
testimonies of Judge Cario and De Francia.
Strangely, the appellate court made no comment as to the inconsistency pointed out
by the RTC as to who prepared the Deed of Sale. If the only point of consideration
was the due execution of the Deed of Sale, then the Court of Appeals should have
properly come out with its finding. Other variances aside, there are no contradictions
in the testimonies of Judge Cario and De Francia on the question of whether or not
Bustria signed the Deed of Sale.
However, as earlier established, the Deed of Sale is a private document. Thus, not
only the due execution of the document must be proven but also its authenticity. This
factor 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. And on this point, the inconsistencies
pointed out by the RTC become crucial.
The matter of authenticity of the Deed of Sale being disputed, the identity of the
progenitor of this all-important document is a material evidentiary point. It is
disconcerting that the very two witnesses of the respondent offered to prove the
Deed of Sale, flatly contradict each other on the basis of their own personal and
sensory knowledge. Worse, the purported author of the Deed of Sale disavowed
having drafted the document, notwithstanding the contrary testimony grounded on
personal knowledge by the documentary witness.
Establishing the identity of the person who wrote the Deed of Sale would not
ordinarily be necessary to establish the validity of the transaction it covers. However,
since it is the authenticity of the document itself that is disputed, then the opposing
testimonies on that point by the material witnesses properly raises questions about
the due execution of the document itself. The inconsistencies in the testimonies of
Judge Cario and De Francia are irreconcilable. It is not possible to affirm the
testimony of either without denigrating the competence and credibility of the other as
a witness. If Judge Cario was truthful in testifying that he did not write the Deed of
Sale, then doubt can be cast as to the reliability of the notarial witness De Francia. It
takes a leap of imagination, a high level of gumption, and perverse deliberation for
one to erroneously assert, under oath and with particularities, that a person drafted a
particular document in his presence.
However, if we were to instead believe De Francia, then the integrity of the notary
public, Judge Cario, would be obviously compromised. Assuming that Judge Cario
had indeed authored the Deed of Sale, it would indeed be odd that he would not
remember having written the document himself yet sufficiently recall notarizing the
same. If his testimony as to authorship of the document is deemed as dubious, then
there is all the reason to make a similar assumption as to his testimony on the
notarization of the Deed of Sale.
These inconsistencies are not of consequence because there is need to indubitably
establish the author of the Deed of Sale. They are important because they cast doubt
on the credibility of those witnesses of the Aquinos, presented as they were to attest
to the due execution and authenticity of the Deed of Sale. The Court of Appeals was
clearly in error in peremptorily disregarding this observation of the RTC.
As a result, we are less willing than the Court of Appeals to impute conclusive value
to the testimonies of de Francia and Judge Cario. The totality of the picture leads us
to agree with the trial court that the Deed of Sale is 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. The evidence
pointing to the non-existence of such a transaction is so clear and convincing that it
is sufficient even to rebut the typical presumption of regularity arising from the due
execution of notarial documents. However, for the reasons stated earlier, the Deed of
Sale is ineluctably an unnotarized document. And the lower court had more than
sufficient basis to conclude that it is a spurious document.
Since the validity of the Deed of Sale has been successfully assailed, Tigno's right to
repurchase was not extinguished at the time of the filing of the Petition for revival of
judgment, as correctly concluded by the RTC. The Court of Appeals being in error
when it concluded otherwise, the reinstatement of the RTC Decision is warranted.
WHEREFORE, the Petition is GRANTED. The assailed Decision dated 23 December
1996 and Resolution dated 9 June 1997 of the Court of Appeals in CA-G.R. CV No.
49879 is REVERSED, and the Decision dated 18 August 1994 of the Regional Trial
Court of Alaminos, Pangasinan, Branch 55, in Civil Case No. A-1918 is
REINSTATED. Costs against respondents.
SO ORDERED.
FACTS:
On 11 January 1980, respondent spouses Estafino and Florentina Aquino (the
Aquinos) filed a complaint for enforcement of contract and damages against Isidro
Bustria (Bustria). The complaint sought to enforce an alleged sale by Bustria to the
Aquinos of a fishpond located in Dasci, Pangasinan. Such conveyance was covered
by a Deed of Sale dated 2 September 1978. Bustria and the Aquinos entered into a
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 Sale was 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 of the Deed of Sale, 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 jurat did not render the
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:
1. Whether or not a deed of sale subscribed by way of jurat, not by
acknowledgement is admissible as evidence.
2. Whether or not the Court of Appeals clearly erred in not appreciating the Deed of
Sale as a private document and in applying the presumption of regularity that
attaches only to duly notarized documents, as distinguished from private documents.
Whether or not Judge Cario is authorized to notarize a deed of 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 a
jurat instead of an acknowledgment. A jurat is 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 jurat is that part 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 Sale was not connected with
any official duties of Judge Cario, and there was no reason for him to notarize it.
The validity of a notarial certification necessarily derives from the authority of the
notarial officer. If the notary 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 Sale would 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 Deed of Sale is not a notarized document.
G.R. No. 148280 July 10, 2007
LORETA AGUSTIN CHONG, also known as LORETA GARCIA
AGUSTIN, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, SPOUSES PEDRO and ROSITA DE
GUZMAN and FORTUNE DEVELOPMENT CORPORATION, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the September 14, 2000 Decision1 of the
Court of Appeals in CA-G.R. CV No. 47487, which affirmed the August 8, 1994
Decision2 of the Regional Trial Court of Manila, Branch 7 in Civil Case No. 89-50138
dismissing petitioners complaint, and ordering her to pay P50,000.00 as moral
damages, P10,000.00 as attorneys fees and costs of the suit, as well as the May 28,
2001 Resolution which denied petitioners motion for reconsideration.
3
On August 25, 1989, petitioner Loreta Agustin Chong filed a Complaint for
annulment of contracts and recovery of possession against respondent-spouses
Pedro and Rosita de Guzman, and Fortune Development Corporation before the
Regional Trial Court of Manila.
Petitioner alleged that she is the common-law wife of Augusto Chong; that on
February 13, 1980, she bought a parcel of land (subject lot) from respondent
corporation as evidenced by Contract to Sell No. 195, particularly described as
follows:
"A parcel of land (Lot 1 Block 4, of the consolidation-subdivision plan (LRC) Pcs-
18730, being a portion of the consolidation of Lot 4522 and 4524, Paraaque
Cadastre, Lots 1 & 2 (LRC) Psd-169203) L.R.C. Rec. Nos. N-27442, N-27463, N-
13960), situated in the Barrio of San Dionisio, Province of Rizal, containing an area
of TWO HUNDRED SIXTY SIX (266) square meters, more or less."
She further alleged that by virtue of a special power of attorney she executed in favor
of Augusto, the latter sold the subject lot to respondent-spouses under the Transfer
of Rights and Assumption of Obligation dated January 30, 1984 allegedly
for P80,884.95 which petitioner or Augusto never received, thus, said sale is null and
void for lack of consideration; and that despite repeated demands, respondent-
spouses refused to turn over the possession of the subject lot to petitioner.
Petitioner likewise denied selling the house constructed on the subject lot to
respondent-spouses for P25,000.00, claiming that she could not have executed the
Deed of Sale because at the time it was allegedly notarized on February 24, 1987,
she was working in Hong Kong as a domestic helper. Thus, said sale is void for
being a forgery. Petitioner alleged that despite repeated demands, respondent-
spouses refused to surrender the possession of the aforesaid house.
Petitioner also claimed that she is the owner of a house located at 1191 P. Zapanta,
Singalong, Manila; that without her knowledge and consent, respondent-spouses
rented said house to other persons and collected rent; and that despite repeated
demands, respondent-spouses refused to return the possession of the house as well
as the rentals collected therefrom.
Petitioner prayed that the Transfer of Rights and Assumption of Obligation as well as
the Deed of Sale be declared null and void; that respondent-spouses be ordered to
turn over the possession of the houses and lots in Paraaque and Singalong to
petitioner; and that respondents indemnify her for actual, moral and exemplary
damages as well as attorneys fees.
Respondent-spouses moved to dismiss4 the complaint for failure to state a cause of
action but it was denied by the trial court. On December 11, 1989, respondent-
spouses filed their Answer5 to the Complaint while respondent corporation failed to
file its answer within the reglementary period hence, it was declared in default.
During the pre-trial, respondent-spouses orally moved for leave of court to file an
amended answer which was granted. On May 18, 1990, respondent-spouses filed
their Amended Answer with Counterclaim.6 Petitioner filed a Motion to Strike Out
Amended Answer7 alleging that no prior written motion for leave to file amended
answer was filed in violation of Section 3, Rule 10 of the Rules of Court and that the
amended answer contained substantial amendments, but same was denied by the
trial court in an Order8 dated July 16, 1990.
In their amended answer, respondent-spouses asserted that the Transfer of Rights
and Assumption of Obligation was supported by sufficient consideration; that they
paid P125,000.00, and not P25,000.00 as alleged by petitioner, for the house on the
subject lot; that the Deed of Sale over the house constructed on the subject lot was
signed by petitioner on February 22, 1987 while she was still in the country but it was
notarized only on February 24, 1987 or after she had left to work abroad; that
petitioner failed to allege or submit any actionable document to prove her claim of
ownership; that the house located in Singalong is owned by respondent-spouses;
and that petitioners complaint is malicious and baseless which entitles them to
actual, moral, exemplary and nominal damages, as well as attorneys fees.
After trial on the merits, the trial court rendered a Decision finding thus:
The Court is convinced that the document entitled Transfer of Rights and Assumption
of Obligation is sufficiently supported by valuable consideration. The evidence
presented by the [respondent-spouses] has shown that for the house and lot
[respondent-spouses] paid almost P480,000.00 and this definitely is more than
sufficient compensation for the house and lot in question. The Court believes,
considering the evidence on record, that [petitioner] on February 22, 1987 received
the amount of P25,000.00 from Pedro de Guzman before she left for Hongkong.
Unfortunately, the document was not notarized on that day but two days thereafter.
The Court also believes that it was the [respondent- spouses] who paid the sum
of P105,000.00, the obligation of Augusto Chong and [petitioner] to Rosario Cabelin
and as a consequence, all the documents pertaining thereto were given to the
[respondent-spouses] by Rosario Cabelin. The Court also notes that [petitioner] and
Augusto Chong could not even agree as to who was indebted to Rosario Cabelin.
[Petitioner] tried to deny that she was indebted to Rosario Cabelin while Augusto
Chong claimed that it was [petitioner] who was indebted to Rosario.
The Court, therefore, considering those inconsistencies of the [petitioner] and her
paramour refuses to believe their testimonies. On the other hand, the Court finds the
testimony of [respondent Pedro de Guzman] and his witnesses to be believable and
consistent with the evidence received by it. It is clear from the aforementioned
discussion that [petitioner] has failed to prove by a preponderance of evidence her
causes of action against [respondents]. On the other hand, [respondents] have
shown the baselessness of the complaint filed by [petitioner].
WHEREFORE, premises considered, judgment is rendered for [respondents] by
dismissing the complaint and sentencing [petitioner] to pay the
[respondents] P50,000.00 as moral damages plus P10,000.00 as attorneys fees,
plus costs of suit.9
Petitioner appealed to the Court of Appeals which rendered the assailed Decision
affirming in toto the decision of the trial court.
Hence, the instant petition. Petitioner raises four issues, to wit: (1) whether the trial
court erred in admitting respondent-spouses amended answer in violation of Section
3, Rule 10 of the Rules of Court, (2) whether petitioner was deprived of due process
when during the pre-trial, respondent-spouses failed and refused to furnish her
copies of the documents that they intended to present, in violation of Section 6, Rule
18 of the Rules of Court, (3) whether the trial court erred in not finding that the
Transfer of Rights and Assumption of Obligation dated January 30, 1984 was void or,
in the alternative, unenforceable as against petitioner.
Petitioner claims that the trial court erred in granting respondent-spouses oral
manifestation or motion for leave to file an amended answer. She argues that
respondent-spouses should have filed a written motion for leave to file an amended
answer, pursuant to Section 3,10 Rule 10 of the Rules of Court. She argues that the
purpose of the rule is to help the trial court determine whether the proposed
amendments constitute substantial amendments to their original answer and whether
the motion is intended to delay the proceedings, as well as to give the adverse party
an opportunity to be heard.
The contention lacks merit. The trial court allowed respondent-spouses to amend
their answer after it observed that their original answer merely contained specific
denials without clearly setting forth, as far as practicable, the truth of the matter upon
which they rely to support such denial as required under Section 10,11 Rule 8 of the
Rules of Court. Further, after denying the material allegations in the Complaint,
respondent-spouses merely stated in their original answer that "[a]ll other arguments
embodied in [their prior] motion to dismiss are reiterated as part of the special and
affirmative defenses herein."12 Under these conditions, the trial court justifiably
deemed it necessary for respondent-spouses to amend their answer in order to
sufficiently clarify the issues to be tried and thereby expedite the proceedings. In
granting respondent-spouses motion to file an amended answer, the trial court acted
within its discretion pursuant to Section 2, Rule 18 of the Rules of Court:
SEC. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider:
(c) The necessity or desirability of amendments to the pleadings; Trial court allowed
the filing of an amended answer to avoid multiplicity of suits, to determine the real
controversies between the parties and to decide the case on the merits without
unnecessary delay, all of which form the bases for the liberality of the rule in allowing
amendments to pleadings.13 This was in consonance with the basic tenet that the
Rules of Court shall be liberally construed to promote the just, speedy and
inexpensive disposition of every action.14
Petitioner next asserts that during the pre-trial, respondent-spouses did not furnish
her with copies of the documents that they intended to present, in violation of Section
6,15 Rule 18 of the Rules of Court. Petitioner claims that she was denied due process
and that the trial court gave respondent- spouses undue advantage during the trial of
this case.
Petitioners contention lacks merit. The records show that respondent-spouses
Pre-Trial Brief16 dated April 10, 1990 enumerated the documents to be presented
during the trial as well as the purposes of their presentation. Although copies of the
documents enumerated therein were not attached to the Pre-Trial Brief, they were
nonetheless previously attached to respondent-spouses Motion To Dismiss17 dated
September 8, 1989, Reply18 to petitioners opposition to the motion to dismiss dated
September 25, 1989, and Amended Answer With Counterclaim19 dated May 11,
1990, all of which were copy furnished to petitioner. During trial, petitioner was
afforded every opportunity to examine respondent-spouses documentary evidence,
and to controvert the same. Petitioner even cross-examined respondent-spouses on
these documents at length and challenged their validity during the presentation of
both her evidence-in-chief and rebuttal evidence. Consequently, petitioner can not
now claim that she was denied due process and that she was unable to adequately
prosecute her case.
Petitioners main contention rests on the alleged nullity or, in the alternative,
unenforceability of the Transfer of Rights and Assumption of Obligation dated
January 30, 1984.
We agree with the findings of the lower courts that the parties voluntarily executed
the Transfer of Rights and Assumption of Obligation dated January 30, 1984 and that
the same was supported by valuable consideration. The evidence on record
sufficiently established that on February 13, 1980, petitioner bought the subject lot
from Respondent Corporation under Contract to Sell No. 195 and thereafter, began
paying the stipulated monthly installments thereon. On April 18, 1983, she executed
a Special Power of Attorney20 in favor of Augusto Chong, granting the latter the
power to "mortgage, encumber, sell and dispose the property (subject lot) under
such terms and conditions which my said attorney (Augusto) may deem acceptable x
x x" and "pay any/all my valid obligations to the proper person/s x x x."21 On July 1,
1983, one Rosario Cabelin filed a complaint for sum of money against petitioner and
Augusto with the Regional Trial Court of Pasay City which was docketed as Civil
Case No. 1102-P. Under threat of preliminary attachment, petitioner, who was then
working as a domestic helper in Hong Kong, sought the assistance of respondent-
spouses to settle the case. Subsequently, Rosario, Augusto and petitioner, with
Augusto acting as petitioners attorney-in-fact, entered into a Compromise
Agreement22 dated July 25, 1983 wherein petitioner and Augusto agreed to pay the
amount of P55,000.00 to Rosario. To guarantee the payment of the remaining
balance of the debt in the amount of P105,000.00, Augusto, again acting as
petitioners attorney-in-fact, executed a Deed of Sale with Right to
Repurchase23 dated July 25, 1983 over the subject lot in favor of Rosario in
consideration of the aforesaid sum. In addition, Augusto, respondent-spouses,
Gualberto and Fe Arceta jointly and severally promised to pay the aforesaid sum on
or before July 24, 1984 under a Promissory Note24 dated July 24, 1983.
Sometime in December 1983, Rosario demanded payment of the remaining balance
of the debt. Respondent-spouses agreed to pay Rosario the amount of P105,000.00
provided petitioner will transfer her rights over the subject lot to them. Thus, after
respondent-spouses had paid Rosario, Augusto, acting under the aforementioned
Special Power of Attorney, executed a Transfer of Rights and Assumption of
Obligation25 dated January 30, 1984 in favor of respondent-spouses and with the
conformity of Respondent Corporation. Correspondingly, Rosario executed a
Quitclaim26 in favor of Augusto releasing him from the aforementioned Deed of Sale
with Right to repurchase and Promissory Note. Thereafter, respondent-spouses paid
the remaining monthly installments and transferred the title over the subject lot in
their names as evidenced by Transfer Certificate of Title No. 129227issued on
January 21, 1988.
Petitioner asserts, however, that the Transfer of Rights and Assumption of Obligation
is null and void because it lacked valuable consideration. She claims that she
executed the Special Power of Attorney in favor of Augusto with the understanding
that the subsequent transfer of the subject lot to respondent-spouses would be
merely simulated ("kunwarian").28 She claims that respondent-spouses and her
nieces enticed her into executing the Special Power of Attorney because Augusto
might sell the subject lot while petitioner is abroad and use the proceeds thereof to
support his children with his legal wife.29 Thus, petitioner agreed to execute the
Special Power of Attorney in favor of Augusto for the sole purpose of transferring the
subject lot in the name of respondent-spouses through a simulated sale.
We are not persuaded. If petitioner believes that Augusto would appropriate the
property during her absence, then she should not have executed the Special Power
of Attorney in his favor authorizing him to dispose of the subject lot. If it was truly her
intention to prevent Augusto from disposing the subject lot, then she could have
simply retained the rights over the subject lot in her name or directly transferred the
same to the name of respondent- spouses before she left for Hong Kong. Notably,
when petitioner was presented as a witness during the presentation of her rebuttal
evidence, she claimed that she executed the Special Power of Attorney to help her
nieces, Gualberto and Fe Arceta, secure a loan for the purported repair of the latters
duplex house.30 Augusto was allegedly appointed as petitioners attorney-in-fact so
that the former could act as a co-maker of the loan.31 Unfortunately for petitioner,
these inconsistencies cast doubt on her credibility.
Petitioners claim that Augusto was not empowered to dispose of the subject lot in
order to pay off an alleged debt she owed to Rosario, is not worthy of belief. The
clear and unmistakable tenor of the Special Power of Attorney reveals that petitioner
specifically authorized Augusto to sell the subject lot and to settle her obligations to
third persons. The Special Power of Attorney is a duly notarized document and, as
such, is entitled, by law, to full faith and credit upon its face.32 Notarization vests upon
the document the presumption of regularity unless it is impugned by strong,
complete and conclusive proof.33 Rather than challenging its validity, petitioner
admitted in open court that she signed the Special Power of Attorney with a full
appreciation of its contents34 and without reservation.35
Petitioner likewise admitted that Rosario was her creditor when she was first
presented as a witness during the reception of evidence.36 Even petitioners own
witness, Augusto, testified that petitioner was indebted to Rosario due to a failed
business venture involving a store in Baclaran, Manila.37 In her Letter38 dated
February 6, 1984 to respondent- spouses, petitioner, likewise, admitted that she was
indebted to Rosario and sought the assistance of respondent-spouses to help pay off
her debts.
In fine, the evidence on record sufficiently established that petitioners rights over the
subject lot were validly transferred to respondent-spouses in consideration of the
latters payment of petitioners debts to Rosario. When Augusto executed the
Transfer of Rights and Assumption of Obligations on behalf of petitioner, he was
acting within his powers under the Special Power of Attorney for valuable
consideration. In a contract of agency, the agent acts in representation or in behalf of
another with the consent of the latter,39 and the principal is bound by the acts of his
agent for as long as the latter acts within the scope of his authority.40 Hence, the
Transfer of Rights and Assumption of Obligations is valid and binding between the
parties.
Lastly, petitioner impugns the jurisdiction of the Pasay City RTC in Civil Case No.
1102-P on the ground that it never acquired jurisdiction over her person because
summons were allegedly not properly served on her, and that she never authorized
Augusto to enter into the compromise agreement in said case on her behalf.
According to petitioner, she was in Hong Kong when the collection suit was filed by
Rosario against her and Augusto. In short, she assails the validity of the judgment
based on compromise agreement since the proceedings in Civil Case No. 1102-P
were presumably terminated after the parties entered into a Compromise Agreement
dated July 25, 1983. She posits that all the documents signed by Augusto on her
behalf, specifically, the Compromise Agreement dated July 25, 1983, Deed of Sale
with Right to repurchase dated July 25, 1983, and Transfer of Rights and Assumption
of Obligation dated January 30, 1984, are unenforceable as against her.
Petitioners contention must likewise fail. A judgment based on a compromise
agreement is a judgment on the merits wherein the parties have validly entered into
stipulations and the evidence was duly considered by the trial court that approved
the agreement.41It is immediately executory and not appealable unless set aside on
grounds of nullity under Article 203842 of the Civil Code,43 and has the effect of a
judgment of the court.44 Further, well-entrenched is the rule that a party may attack
the validity of a final and executory judgment through three ways:
The first is by petition for relief from judgment under Rule 38 of the Revised Rules of
Court, when judgment has been taken against the party through fraud, accident,
mistake or excusable negligence, in which case the petition must be filed within sixty
(60) days after the petitioner learns of the judgment, but not more than six (6)
months after such judgment was entered. The second is by direct action to annul and
enjoin the enforcement of the judgment. This remedy presupposes that the
challenged judgment is not void upon its face, but is entirely regular in form, and the
alleged defect is one which is not apparent upon its face or from the recitals
contained in the judgment. x x x under accepted principles of law and practice, long
recognized in American courts, the proper remedy in such case, after the time for
appeal or review has passed, is for the aggrieved party to bring an action enjoining
the judgment, if not already carried into effect; or if the property has already been
disposed of, he may institute suit to recover it. The third is either a direct action,
as certiorari, or by a collateral attack against the challenged judgment (which is) void
upon its face, or that the nullity of the judgment is apparent by virtue of its own
recitals. As aptly explained by Justice Malcolm in his dissent in Banco Espaol-
Filipino v. Palanca, supra, A judgment which is void upon its face, and which
requires only an inspection of the judgment roll to demonstrate its want of vitality is a
dead limb upon the judicial tree, which should be lopped off, if the power so to do
exists.
In the case at bar, the want of jurisdiction of the Pasay RTC in Civil Case No. 1102-P
due to the alleged non-service of summons has not been established by petitioner.
The judgment based on compromise agreement made therein was likewise not
established as being void upon its face. Except for the self-serving allegation that
she was in Hong Kong when the collection suit was filed, petitioner did not present
competent proof to prove that she was not properly served with summons. Even if it
were true that she was abroad when the collection suit was filed against her,
summons could still be served through extraterritorial service under Section 1645 in
relation to Section 15,46 of Rule 14 of the Rules of Court. Undeniably, the Pasay City
RTC in Civil Case No. 1102-P enjoys the presumption of regularity in the conduct of
its official duties which was not fully rebutted by petitioner.
Petitioner bewails that the records of Civil Case No. 1102-P was destroyed due to a
fire that gutted the Pasay City Hall Building on January 18, 1992 as evidenced by a
Certification47 dated November 6, 2001 issued by the Office of the Clerk of Court,
RTC, Pasay City. However, petitioner was not without recourse considering that she
could have filed a petition for the reconstitution of the records of said case, and
thereafter, sought the annulment of the judgment therein, if warranted. The
procedure for the reconstitution of records could have been done either under Act
No. 3110,48 which is the general law that governs the reconstitution of judicial
records, or under Section 5(h)49 of Rule 135 of the Rules of Court which recognizes
the inherent power of the courts to reconstitute at any time the records of their
finished cases.50 Since petitioner failed to avail of the proper remedies before the
proper forum, we cannot rule on, much less disturb, the validity of the proceedings
before the Pasay City RTC in Civil Case No. 1102-P.
At any rate, whether or not petitioner was properly served with summons in Civil
Case No. 1102-P, and that Augusto was not authorized to enter into the Compromise
Agreement dated July 25, 1983 on her behalf, will not affect the outcome of this
case. There is sufficient evidence on record to establish that petitioner impliedly
ratified the compromise agreement as well as the other documents executed
pursuant thereto. Implied ratification may take various forms such as by silence or
acquiescence; by acts showing approval or adoption of the contract; or by
acceptance and retention of benefits flowing therefrom.51
In the instant case, petitioner claimed that she learned of the transfer of the subject
lot to respondent-spouses as part of the settlement in the collection suit in May
1985;52 however, she did not take steps to immediately assail the alleged
unauthorized transfer of the same. She failed to adequately explain why she waited
four years later or until 1989 to file the subject complaint to annul the aforesaid
documents. More importantly, instead of asserting her rights over the subject lot after
discovering the alleged fraudulent and unauthorized transfer of the same to
respondent-spouses in May 1985, petitioner subsequently sold the house
constructed on the subject lot also to respondent-spouses on February 22, 1987 for
the sum of P25,000.00. This act runs counter to the reaction of one who discovers
that his or her property has been fraudulently conveyed in favor of another.
Indubitably, this act only fortifies the previous finding that petitioner has authorized
and consented to, or, at the very least, ratified the sale of the subject lot to
respondent-spouses to pay off her debts to Rosario.
Petitioner alleges that the Deed of Sale53 dated February 24, 1987 is a forgery. She
denies having signed the aforesaid deed and claims that on February 24, 1987, the
date when the deed was allegedly notarized, she was in Hong Kong working as a
domestic helper. The trial court and the Court of Appeals found otherwise. They gave
credence to the claim of respondent Pedro de Guzman that petitioner signed the
Deed of Sale and received the P25,000.00 consideration therefor on February 22,
1987 or two days before she left for Hong Kong. However, the deed was notarized
only on February 24, 1987 as admitted by respondent Pedro de Guzman. The Court
of Appeals noted that even a cursory examination of the signature appearing on the
Deed of Sale would show that it was written by one and the same hand that signed
the Contract to Sell which petitioner admits contained her signature.54 In addition,
Augusto admitted that he signed the deed as evidenced by the signature in the
portion of the deed where he gave his marital consent to the sale.55 Further, as per
the request of petitioner in a Letter56 dated February 22, 1987, respondent- spouses
gave petitioners son and sister the sum of P122,000.00 as additional consideration
for the house built on the subject lot. Thereafter, petitioners son and sister signed an
Annotation57 dated March 20, 1987 in said Letter acknowledging receipt of the
aforesaid sum.1avvphi1
It was established that petitioner received valuable consideration for the sale of the
house on the subject lot. Concededly, the notarization of the deed was defective as
respondent Pedro de Guzman himself admitted that the deed was notarized only two
days after petitioner had signed the deed and at which time she was already in Hong
Kong. In short, petitioner did not appear before the notary public in violation of the
Notarial Law58 which requires that the party acknowledging must appear before the
notary public or any other person authorized to take acknowledgments of
instruments or documents.59 Nevertheless, the defective notarization of the deed
does not affect the validity of the sale of the house. Although Article 135860 of the
Civil Code states that the sale of real property must appear in a public instrument,
the formalities required by this article is not essential for the validity of the contract
but is simply for its greater efficacy or convenience, or to bind third persons,61 and is
merely a coercive means granted to the contracting parties to enable them to
reciprocally compel the observance of the prescribed form.62 Consequently, the
private conveyance of the house is valid between the parties.63
Based on the foregoing, we are satisfied that the sale of the subject lot and the
house built thereon was made for valuable consideration and with the consent of
petitioner. Consequently, we affirm the findings of the lower courts which upheld the
validity of the transfer of petitioners rights over the subject lot as well as the sale of
the house built thereon in favor of respondent-spouses. Anent petitioners claim that
she is the owner of another house located at 1191 P. Zapanta, Singalong, Manila, the
same must similarly fail. Aside from the self-serving statement that she owns the
house, petitioner merely presented a Metropolitan Waterworks and Sewerage
System Official Water Receipt64 dated December 7, 1979, a water installation
Receipt65 dated August 22, 1979, and a Manila Electric Company (Meralco)
Warrant66 to purchase a stock of Meralco Securities Corporation dated December 24,
1975, all in her name, to establish her claim. Suffice it to state, petitioners evidence
does not meet the quantum of proof necessary to establish that she is the rightful
owner of the aforesaid house. At best, they prove that she resided in the aforesaid
house sometime in the 1970s or long before she filed the subject complaint on
August 25, 1989. Basic is the rule that in civil cases, the burden of proof is on the
plaintiff to establish her case by a preponderance of evidence. If she claims a right
granted or created by law, she must prove her claim by competent evidence. She
must rely on the strength of her own evidence and not on the weakness of that of her
opponent.67 This, petitioner failed to do.
WHEREFORE, the petition is DENIED. The September 14, 2000 Decision of the
Court of Appeals in CA-G.R. CV No. 47487 which affirmed the August 8, 1994
Decision of the Regional Court of Manila, Branch 7, in Civil Case No. 89-50138,
dismissing the complaint, and ordering petitioner to pay P50,000.00 as moral
damages, P10,000.00 as attorneys fees and costs of the suit, and its May 28, 2001
Resolution denying petitioners motion for reconsideration, are AFFIRMED. Costs
against petitioner. SO ORDERED.
FACTS: On August 25, 1989, petitioner Loreta Agustin Chong filed a complaint for
annulment of contracts and recovery of possession against respondent-spouses Pedro and
Rosita de Guzman, and Fortune Development Corporation before the Regional Trial Court of
Manila. Petitioner alleged that she is the common-law wife of Augusto Chong; that on
February 13, 1980, she bought a parcel of land from respondent corporation as evidenced by
Contract to Sell No. 195. She further stated that by virtue of a special power of attorney that
she executed in favor of Augusto, the latter sold the subject lot to respondent spouses but it
was not paid and despite repeated demands of surrender of the lot, the respondent spouses did
not heed.

In their amended answer, respondent-spouses asserted that the Transfer of Rights and
Assumption of Obligation was supported by sufficient consideration; that they paid
P125,000.00, and not P25,000.00 as alleged by petitioner, for the house on the subject lot;
that the Deed of Sale over the house constructed on the subject lot was signed by petitioner
on February 22, 1987 while she was still in the country but it was notarized only on February
24, 1987 or after she had left to work abroad; that petitioner failed to allege or submit any
actionable document to prove her claim of ownership; that the house located in Singalong is
owned by respondent-spouses. The trial court rendered a decision in favor or respondent
spouses. CA confirmed the lower courts decision in toto.

HELD: The clear and unmistakable tenor of the Special Power of Attorney reveals that
petitioner specifically authorized Augusto to sell the subject lot and to settle her obligations to
third persons. The Special Power of Attorney is a duly notarized document and, as such, is
entitled, by law, to full faith and credit upon its face. Notarization vests upon the document
the presumption of regularity unless it is impugned by strong, complete and conclusive proof.
Rather than challenging its validity, petitioner admitted in open court that she signed the
Special Power of Attorney with a full appreciation of its contents and without reservation.

The Court ruled that the sale of the subject lot and the house built thereon was made for
valuable consideration and with the consent of petitioner. Consequently, we affirm the
findings of the lower courts which upheld the validity of the transfer of petitioners rights
over the subject lot as well as the sale of the house built thereon in favor of respondent-
spouses.