Cruz v.

Centron 442 SCRA 53 (2004)

FACTS:

1. Atty. Centron assisted a certain Gloria Logdat and Conchita de la Cruz in

consummating the sale of a parcel of land (OCT No. 2186) in the name of one
Joaquina Jabat. Such assistance consisted in preparing and notarizing the
documents of sale.
2. The said sale is illegal because the property covered by the sale is still the
subject of reconstitution and Extra-Judicial Settlement among the heirs. As a
result of the illegal sale, Logdat and de la Cruz are charged with estafa through
falsification of public documents. Atty. Centron took advantage of her being a
lawyer to solicit the trust and confidence of the buyers of the subject parcel of
land.
3. Atty. Centron is involved in the disappearance of OCT No. 2186, and she refuses
to surrender the title which is in the possession of one of her relatives.
4. Hence this case of disbarment was filed by Logdat and De la Cruz against Atty.
Centron
5. In her Comment, Atty. Centron denied any involvement in the preparation of the
documents and in the consummation of the sale of the parcel of land covered by
OCT No. 2186. She claims that her only participation in the said sale is that she
was the one who notarized the deed of sale on because she was requested by
the parties to notarize the same.
6. The Office of the Court Administrator held that Atty. Centron violated the
provisions of Section 242 of the Revised Administrative Code as well as Section
G, Chapter VIII of the Manual for Clerks of Court when she notarized a deed of
conveyance, a document which is not connected with the exercise of her official
functions and duties as Ex-Officio Notary Public. Accordingly, she be fined in the
amount of P2,000.00 and sternly warned.

ISSUE: Whether or not Atty. Centron should be held liable.

RULING: Yes. In the present case, we find that complainant failed to present clear and
preponderant evidence to show that respondent had direct and instrumental
participation in the preparation of documents and the subsequent sale of the subject
parcel of land covered by OCT No. 2186. Aside from the deed of sale covering the
subject parcel of land which was notarized by respondent, no competent evidence was
shown that would directly link her to the said sale.

While it may be logical to assume that Atty. Centron was the one who prepared the
deed of sale since she was the one who notarized it, we cannot give evidentiary weight
to such a supposition in the absence of any evidence to support it. Moreover,
complainants allegation that Atty. Centron influenced the buyers is contradicted by the
sworn affidavit of Adelfa Manes, one of the buyers of the land. Manes attested to the
fact that respondent did not convince nor influence them in buying the subject property.
 Likewise, we find no competent evidence to prove that Atty. Centron is responsible for
the alleged loss of the owners duplicate copy of OCT No. 2186.

Nonetheless, we find that respondent is guilty of violating Section 41 (as amended by

Section 2 of R. A. No. 6733) and Section 242 of the Revised Administrative Code, in
relation to Sections G, M and N Chapter VIII of the Manual for Clerks of Court.
Under these provisions, Clerks of Court are notaries public ex officio, and may thus
notarize documents or administer oaths but only when the matter is related to the
exercise of their official functions. In the present case, it is not within Atty. Centron
competence, as it is not part of her official function and duty, to notarize the subject
deed of sale. Respondent is guilty of abuse of authority.

In the present case, it appearing that this is respondents first offense of this nature and
that she has only notarized one document, we find the OCAs recommended penalty of
a fine of P2,000.00 commensurate to the offense committed.

Tigno v. Spouses Aquino 444 SCRA 61 (2004)

FACTS:

1. Spouses Aquino filed a complaint against Isidro Bustria which sought to enforce an alleged sale
by Bustria to the Aquinos of a 120,000 square meter fishpond located in Dasci, Pangasinan.
The conveyance was covered by a Deed of Sale dated 2 September 1978.

2. A compromise agreement was entered into between them whereby Bustria agreed to recognize
the validity of the sale, and the Aquinos agreed to grant Bustria the right to repurchase the same
property after the lapse of seven 7 years.

3. Bustria died and was substituted by his daughter, Zenaida B. Tigno. On 1 December 1989,
Tigno attempted to repurchase the property by filing a Motion for Consignation and depositing
230,000 with the RTC, but this was opposed by the Aquinos arguing that the right to repurchase
was not yet demandable and that Tigno had failed to make a tender of payment.

4. RTC denied the Motion for Consignation.

5. Tigno filed an action for Revival of Judgment. 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.
6. Among the witnesses presented by the Aquinos during trial were Jesus De Francia, the
instrumental witness to the deed of sale, and former Judge Cariño, 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 the deed of sale purportedly executed by Bustria

7. 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.

8. RTC refused to admit the Deed of Sale in evidence. RTC then ruled 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 Cariño 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 or that Aquino had raised the matter of the
deed of sale in his previous Opposition to the Motion for Consignation.

9. CA reversed the decision of RTC and ruled in favor of Spouses Aquino. The appellate court
ratiocinated that there were no material or substantial inconsistencies between the testimonies
of Cariño 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. 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.

ISSUE: W/N the deed of sale was notarized properly, hence admissible as evidence

RULING: No. SC ruled in favor of Tigno. RTC decision is reinstated.

RATIO: 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 CARIÑO
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.

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 Cariño to notarize the Deed of Sale.

It is undisputed that Franklin Cariño at the time of the notarization of the Deed of Sale, was a
sitting judge of the Metropolitan Trial Court of Alaminos. 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. However, as far
back as 1980 in Borre v. Moya, the Court explicitly declared that municipal court judges such as
Cariño may notarize only documents connected with the exercise of their official duties. The
Deed of Sale was not connected with any official duties of Judge Cariño, and there was no
reason for him to notarize it.

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.
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.

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 Cariño 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 that before any
private document offered as authentic is received in evidence, its due execution and authenticity
must be proved.

The Deed of Sale was offered in evidence by Aquinos, hence, the burden falls upon the Aquinos
to prove its authenticity and due execution. However, the SC observed 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
receipts. 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.

Gamido vs. New Bilibid Prisons G.R. No. 114829 (1995)

FACTS:

In the Resolution of 7 September 1994, The Court required Atty. Icasiano M. dela Rea, to show
cause why no disciplinary action should be taken against him for making it appear in the jurat of
the petition in this case that the petitioner subscribed the verification and swore to before him,
as notary public, on 19 April 1994, when in truth and in fact the petitioner did not. In his
Explanation, Atty. Icasiano M. dela Rea admitted having executed the jurat without the presence
of petitioner Gamido. The explanation states: “xxx I did it in the honest belief that since it is jurat
and not an acknowledgement. xxx” Then he apologizes to the Court and assures it that
henceforth he would be more careful and circumspect.

ISSUE: WON Atty. Rea’s explanation is satisfactory that he honestly confused Jurat and
Acknowledgement.

RULING: No, a jurat which is, normally in this form:

Subscribed and sworn to before me in _______________, this ____ day of ____________,

affiant having exhibited to me his Community (before, Residence) Tax Certificate No.
____________ issued at ______________ on ____________.

It is that part of an affidavit in which the officer certifies that the instrument was sworn to before
him. It is not a part of a pleading but merely evidences the fact that the affidavit was properly
made. The jurat in the petition in the case also begins with the words "subscribed and sworn to
me."

To subscribe literally means to write underneath, as one's name; to sign at the end of a
document. To swear means to put on oath; to declare on oath the truth of a pleading, etc.
Accordingly, in a jurat, the affiant must sign the document in the presence of and take his oath
before a notary public or any other person authorized to administer oaths.

As to acknowledgment, Section 1 of Public Act No. 2103 provides:

(a) The acknowledgement 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. (See Lorenzo M. Tañada and Francisco A. Rodrigo, Modern
Philippine Legal Forms, vol. II, 1964 Fifth ed., 735).
 It is obvious that the party acknowledging must likewise appear before the notary public or any
other person authorized to take acknowledgments of instruments or documents.

The claim or belief of Atty. dela Rea that the presence of petitioner Gamido was not necessary
for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief
since he was first commissioned as a notary public, then he has been making a mockery of the
legal solemnity of an oath in a jurat. Notaries public and others authorized by law to administer
oaths or to take acknowledgments should not take for granted the solemn duties appertaining to
their offices. Such duties are dictated by public policy and are impressed with public interest.

Fuentes v. Buno 560 SCRA 22 (2008)

FACTS:

1. Geronimo Fuentes filed a complaint wherein he alleged that he is one of the nine heirs of
Bernardo Fuentes, their father, who owned an agricultural land located at San Jose, Talibon,
Bohol.

2. He also alleged that respondent judge prepared and notarized an "Extra-Judicial Partition with
Simultaneous Absolute Deed of Sale" of the said agricultural land, executed by complainant’s
mother Eulalia Credo Vda. de Fuentes, widow of Bernardo Fuentes, and Alejandro Fuentes, on
his own behalf and on behalf of his brothers and sisters, including Geronimo Fuentes, as
heirs/vendors and one Ma. Indira A. Auxtero, as vendee.

3. In the aforesaid document, the aforementioned agricultural land was sold, transferred and
conveyed by the heirs/vendors to the vendee despite the fact that in his Special Power of
Attorney (SPA), he merely appointed his brother, Alejandro Fuentes to mortgage said
agricultural land but not to partition, much more to sell the same.

4. According to complainant Geronimo Fuentes respondent judge notarized said document as ex-
officio Notary Public, thereby abusing his discretion and authority as well as committing graft
and corruption.
5. In defense, respondent judge contended that he could not be charged of graft and corruption,
since in a municipality where a notary public is unavailable, a municipal judge is allowed to
notarize documents or deeds as ex-officio notary public.

ISSUE: Whether or not the respondent judge has authority to notarize the documents

RULING: No. While Section 76 of Republic Act No. 296, as amended, and Section 242 of the
Revised Administrative Code authorize MTC and MCTC judges to perform the functions of
notaries public ex officio, the Court laid down the scope of said authority.

SC Circular No. 1-90 prohibits judges from undertaking the preparation and acknowledgment of
private documents, contracts and other deeds of conveyances which have no direct relation to
the discharge of their official functions. In this case, respondent judge admitted that he prepared
both the document itself, entitled "Extra-judicial Partition with Simultaneous Absolute Deed of
Sale" and the acknowledgment of the said document, which had no relation at all to the
performance of his function as a judge. These acts of respondent judge are clearly proscribed
by the aforesaid Circular.

While it may be true that no notary public was available or residing within respondent judge’s
territorial jurisdiction, as shown by the certifications issued by the RTC Clerk of Court and the
Municipal Mayor of Talibon, Bohol, SC Circular No. 1-90 specifically requires that a certification
attesting to the lack of any lawyer or notary public in the said municipality or circuit be made in
the notarized document. Here, no such certification was made in the Extra-Judicial Partition with
Simultaneous Deed of Sale. Respondent judge also failed to indicate in his answer as to
whether or not any notarial fee was charged for that transaction, and if so, whether the same
was turned over to the Municipal Treasurer of Talibon, Bohol. Clearly, then, respondent judge,
who was the sitting judge of the MCTC, Talibon-Getafe, Bohol, failed to comply with the
aforesaid conditions prescribed by SC Circular No. 1-90, even if he could have acted as notary
public ex-officio in the absence of any lawyer or notary public in the municipality or circuit to
which he was assigned.