VICENTE M. BATIC vs JUDGE VICTORIO L. GALAPON JR. 465 SCRA 7 FACTS: This case involves three administrative complaints filed against Judge Victorio L. Galapon, Jr., of the Municipal Trial Court of Dulag, Leyte. In A.M. No. MTJ-99-1239, filed on April 7, 1997, complainant Vicente M. Batic, co-accused in Criminal Case No. 12305 (entitled People of the Philippines v. Vicente Batic and Lualhati Ellert for Grave Coercion) charged respondent judge with graft and corruption, grave abuse of authority, gross ignorance of the law, dishonesty and conduct prejudicial to the best interest of the service. He claims that respondent issued a warrant of arrest against him and his co-accused in the aforesaid case two days before the complaint was filed. As proof, he attached a warrant of arrest dated March 18, 1997 and a complaint dated March 20, 1997. Batic also charged respondent with engaging in unauthorized notarial practice for notarizing a Deed of Absolute Sale between a certain Antonio Caamic and Lualhati V. Ellert on January 25, 1990. In A.M. No. MTJ-05-1595, initiated on October 1, 1997 through a letter by complainant Horst Franz Ellert, a French national and husband of Lualhati Ellert, respondent judge was charged with having prepared and notarized one Deed of Sale in the name of Lualhati Ellert, with the document describing the latter as “single.” Complainant adds that a certain Attorney Custodio P. Cañete also notarized another Deed of Sale indicating Lualhati Ellert as “single,” and that this Atty. Cañete, 64
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VICENTE M. BATIC vs JUDGE VICTORIO L. GALAPON JR.
465 SCRA 7
FACTS:
This case involves three administrative complaints filed against Judge Victorio L. Galapon,
Jr., of the Municipal Trial Court of Dulag, Leyte.
In A.M. No. MTJ-99-1239, filed on April 7, 1997, complainant Vicente M. Batic, co-
accused in Criminal Case No. 12305 (entitled People of the Philippines v. Vicente Batic and
Lualhati Ellert for Grave Coercion) charged respondent judge with graft and corruption, grave
abuse of authority, gross ignorance of the law, dishonesty and conduct prejudicial to the best
interest of the service. He claims that respondent issued a warrant of arrest against him and his
co-accused in the aforesaid case two days before the complaint was filed. As proof, he attached a
warrant of arrest dated March 18, 1997 and a complaint dated March 20, 1997.
Batic also charged respondent with engaging in unauthorized notarial practice for
notarizing a Deed of Absolute Sale between a certain Antonio Caamic and Lualhati V. Ellert on
January 25, 1990.
In A.M. No. MTJ-05-1595, initiated on October 1, 1997 through a letter by complainant
Horst Franz Ellert, a French national and husband of Lualhati Ellert, respondent judge was
charged with having prepared and notarized one Deed of Sale in the name of Lualhati Ellert, with
the document describing the latter as “single.” Complainant adds that a certain Attorney Custodio
P. Cañete also notarized another Deed of Sale indicating Lualhati Ellert as “single,” and that this
Atty. Cañete, together with his wife and respondent judge are in connivance towards depriving him
of his share in their conjugal properties.
In A.M. No. MTJ-05-1596, complainant Horst Franz Ellert again filed on January 11, 1999,
this time in the form of an Affidavit, a complaint charging respondent with ignorance of the law,
grave misconduct and gross negligence in the performance of duties for having prematurely
issued and signed a warrant of arrest against his wife and Vicente Batic on March 18, 1997,
before a complaint was actually and officially received on March 20, 1997.
Respondent explains that on March 17, 1997, the complainants in the aforementioned
criminal case brought their statements to him and swore to them before him. The following day,
March 18, the police department of Dulag, Leyte, brought the complaint in the same criminal case
to respondent together with the supporting affidavits. Complainants then swore to their complaint
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before him. Respondent decided to immediately conduct the preliminary examination because the
witnesses resided in a barangay far from the town proper of Dulag and it would be expensive for
them to come back on another date. After finding probable cause, he issued an Order on the same
day for the issuance of the warrant of arrest for the two accused. However, it was already late in
the afternoon so the draft Order and the warrant of arrest could no longer be typed. They were
typed the next day.
On March 19, 1997, respondent went on leave of absence to attend the graduation of his
daughter. On March 20, 1997, he signed the Order together with the warrant and since the draft
order was prepared on March 18, 1997 both order and warrant of arrest were dated March 18,
1997. He then brought the records to the table of the clerk of court, Mr. Blandino Bautista, who
stamped on all of them the current date. The date “March 20, 1997” marked on the criminal
complaint thus only signifies the date when the records were received by the clerk of court from
him.
Regarding his act of notarization, respondent claims that he did not prepare the document
and that his participation was limited to its acknowledgment, for which the corresponding fee was
collected by and paid to the clerk of court. He says that he was constrained to notarize the
document because the only notary public in Dulag, Leyte was not in town and the vendor was
compelled to go to him because the vendee was in a hurry. He adds that he at that time sincerely
believed that when no notary public is available, the Municipal Trial Courts may act as ex-officio
notary public, provided the fees shall be for the government. He finishes his argument by saying
that now that there are two notaries public in his municipality, he has refrained from notarizing any
deed.
ISSUE:
What is the limitation of notarial duties of the judges?
RULING:
The notarization of a Deed of Absolute Sale is disagreed with the findings and
recommendation of Investigating Judge that respondent judge should be exonerated. It reasoned
that the rule on the power of the MTC and MCTC judges to act as notaries public ex-officio has
been established even before the issuance of Circular No. 1-90 dated 26 February 1990. It cited
the cases of Borre v. Moya, and Penera v. Dalocanog, wherein the Court ruled that judges are
empowered to perform the functions of notaries public ex-officio, but such authority is limited to the
notarization of only those documents connected with the exercise of their official functions. It
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added that this instance not being the first that respondent committed the infraction, having been
found in A.M. No. MTJ-00-1294 to have engaged in unauthorized notarial work, he should be fined
the amount of Eleven Thousand Pesos (P11,000)
WHEREFORE, the complaints filed against Judge Victorio L. Galapon, Jr. with respect to
the issuance of a warrant of arrest are DISMISSED. However, on the complaints charging
notarization of a private document, respondent judge is found GUILTY of unauthorized
notarization of a private document, and hereby ORDERED to pay a FINE of Twenty Thousand
Pesos (P20,000), with a warning that a repetition of the same will be punished more severely.
JUDGE GERVACIO A. LOPENA vs ATTY. ARTEMIO P. CABATOS
466 SCRA 419
FACTS:
Atty. Artemio P. Cabatos (respondent) was administratively charged by Judge Gervacio A.
Lopena (complainant) of the Municipal Circuit Trial Court (MCTC) of Tagbilaran-Clarin, Bohol of
SERIOUS BREACH OF PROFESSIONAL ETHICS and GRAVE MISCONDUCT on the following
grounds:
1. Respondent knowingly falsified a Deed of Donation purportedly executed by one Crispina
Panis by notarizing the same on June 24, 1981 when the donor had died on January 15,
1981, and
2. Respondent “showed a grave disrespect to the courts and the administration of justice” by
holding, together with his followers, a parade/rally on September 21, 1984 around the
principal streets of Tagbilaran City, directed against complainant who had convicted
respondent’s close relatives in three criminal cases and denied the applications for
probation of two of the convicts.
Acting on this Court’s Resolution respondent submitted his COMMENT...
1. Claiming that he had been away from his place of birth, Panaytayon, Tubigon, Bohol
since 1958, hence, when he notarized the questioned deed of donation, he “really did not
recognize the person of Cristina Panis,” but he was led by one Gregorio Ricafort to believe
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that “the old woman before him at the time he notarized the document was the said
Crispina Panis.”
2. Respondent informed that his notarization of the questioned document in fact resulted to
his indictment in court for reckless imprudence resulting in falsification of public document,
which case was pending trial.
3. As for the charge of having conducted a rally/parade, respondent claimed that the same
was staged by PDP Laban and BAYAN of Bohol as a protest against complainant who
showed bias in presiding over the trial of the criminal cases against members of the
Cabatos family and “disregarding the evidence in convicting them.”
On reply to respondent’s COMMENT, complainant countered that... one of the witnesses
to the questioned document was respondent’s father, Geronimo Cabatos, a permanent resident of
Panaytayon who knew as he was related by blood to Crispina Panis, hence, it is incredible for
respondent not to know of Panis’ death on January 15, 1981 or that “he did not know the person of
Panis even if he had been away from his place of birth since 1958.”
Hence, this Court referred the case to the Integrated Bar of the Philippines (IBP) by
Resolution of June 4, 1990.
Accordingly, the IBP Commissioner on Bar Discipline issued a Notice of Hearing and set forth the
date thereof, but not one of the parties showed up.
The case was set anew for complainant to present evidence during which, again, none of the
parties appeared drawing the Commission to consider the case submitted for resolution.
In view of the failure of the complainant to substantiate his serious charges against the
respondent, it is respectfully recommended that this charge for disbarment be dismissed.
Respondent accordingly prayed for the dismissal of this case.
However, the Commission pointed out that even though respondent was exonerated from the
criminal case filed against him, the same does not exonerate him from the present administrative
case.
ISSUES:
Whether or not there is serious breach of professional ethics committed by respondent?
RULING:
In Flores v. Chua, 306 SCRA 465, that where the notary public is a lawyer, a graver responsibility
is placed upon his shoulder by reason of his solemn oath to obey the laws and to do no falsehood
or consent to the doing of any.
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In Nunga v. Viray, 306 SCRA 487, the Honorable Court ruled that notaries public must
observe with utmost care the basic requirements in the performance of their duties.
That a notary public should not notarize a document unless the persons who signed it are the
same persons who executed and personally appeared before him to attest to the contents of the
truth of what are stated therein.
Respondent having thus failed to faithfully discharge his sacred duties as a notary public,
under the facts and circumstances of the case, the revocation of his notarial commission and
disqualification from being commissioned as notary public for a period of One (1) Year is in order.
As for the charge against respondent of showing “grave disrespect to the courts and the
administration of justice” by holding a parade/rally, along with his followers, during which he
imputed bias to complainant whom he branded as “worse than President Marcos,” it has not been
sufficiently substantiated.
WHEREFORE, the notarial commission of respondent, Atty. Artemio P. Cabatos, if still
existing, is hereby REVOKED and he is hereby DISQUALIFIED to be commissioned as a notary
public for a period of One (1) Year, and WARNED that a similar violation by him shall be dealt with
more severely.
MARINA C. GONZALES vs ATTY. CALIXTO B. RAMOS,
460 SCRA 352
FACTS:
This is a complaint for disbarment filed by Marina C. Gonzales against Atty. Calixto B.
Ramos because of the latter’s alleged misconduct in notarizing a Deed of Absolute Sale.
When ordered to file his Answer, the respondent lawyer alleged that Francisco T.
Gonzales went to his office, accompanied by a couple, showing a Deed of Sale and requested him
to notarize it. The respondent, however, noticed that the Deed of Sale did not contain a technical
description of the property being sold, so he prepared another set of Deed of Absolute Sale.
Thereafter, Francisco and the spouses Gatus, together with a witness, Ms. Eva Dulay, signed the
second Deed of Absolute Sale in his presence. He then instructed Francisco to bring his wife,
herein complainant, to his office so she can sign the Deed of Absolute Sale in his presence.
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When Francisco returned to his office, he brought with him the Deed of Absolute Sale
signed by Marina C. Gonzales. At first, he was hesitant to notarize the document because he did
not see the complainant sign the same. He compared the signatures of Marina C. Gonzales on the
Deed of Absolute Sale with her other signatures in his files, the spouses Gonzales being his
clients from way back. Convinced that the signature on the Deed of Absolute Sale was indeed the
signature of complainant Marina C. Gonzales, respondent notarized the Deed of Absolute Sale.
ISSUE:
Whether or not respondent was liable for notarizing a Deed of Absolute Sale signed by
one of the signatories not in his presence?
RULING:
YES. The respondent’s act of notarizing the document despite the non-appearance of one
of the signatories should not be countenanced. His conduct, if left unchecked, is fraught with
dangerous possibilities considering the conclusiveness on the due execution of a document that
our courts and the public accord to notarized documents. Respondent has clearly failed to
exercise utmost diligence in the performance of his functions as a notary public and to comply with
the mandates of law.
As a lawyer, respondent breached the Code of Professional Responsibility. By notarizing
the questioned deed, he engaged in unlawful, dishonest, immoral or deceitful conduct. He also
committed falsehood and misled or allowed the Court to be misled by any artifice.
WHEREFORE, for breach of the Notarial Law and Code of Professional Responsibility,
the notarial commission of respondent is REVOKED and he is DISQUALIFIED from reappointment
as Notary Public for a period of two years. He is also SUSPENDED from the practice of law for a
period of one year, effective immediately. He is further WARNED that a repetition of same or of
similar acts shall be dealt with more severely.
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BENILDA M. MADDELA vs ATTY. ROSALIE DALLONG-GALICINAO
450 SCRA 352
FACTS:
Complainant Benilda Madella is a Clerk in the Office of the Clerk of Court, Regional Trial
Court (RTC), Bayombong, Nueva Vizcaya, while respondent Atty. Rosalie Dallong-Galicinao is the
Clerk of Court and Ex-Officio Provincial Sheriff of the RTC, Bambang, Nueva Vizcaya. In an
affidavit-complaint dated 7 February 2003, filed with the Integrated Bar of the Philippines (IBP), the
complainant prays for the disbarment of the respondent for “acts unbecominga public servant
and a lawyer, grave misconduct and slander.”
In her affidavit-complaint, the complainant alleged that sometime in July 1999, she
received the amount of P40,000 from the respondent by way of a loan at an interest of 5% per
month. In November 2001, since part of the loan remained unpaid, the respondent went to
complainant’s office and took complainant’s “cash gift check” amounting to P5,000 in her absence
and without her knowledge. There, the respondent “uttered unsavory and humiliating words”
against her (the complainant) and bang her fist on top of the complainant’s table, causing the
glass top of the table to break.
To support her bid to have the respondent stripped of the privilege to practice the noble
profession of law, the complainant attached to her affidavit-complaint a copy of a confidential
letter-complaint of one Benjamin Rilloraza dated 3 May 2001, opposing the respondent’s
admission to the Bar in view of her acts of notarizing documents outside the area of her
commission. Mr. Rilloraza claimed that the respondent, although not yet a lawyer, was issued a
notarial commission for “Kayapa or (Kasibu),” Nueva Vizcaya. However, the respondent notarized
documents in Bayombong, Nueva Vizcaya, outside the area of her commission.
Anent the allegation that she notarized documents in Bayombong, Nueva Vizcaya, outside
of the area of her commission, the respondent explained that she did it to accommodate the
parties thereto, who were her relatives, and that she did not derive profit from such act.
To prove the claim of the respondent, she presented an affidavit of Mr. Josue B. Liclican
dated 10 March 2003 stating that he is the creditor of the complainant and she merely brokered
the loan agreement and acted as a guarantor in favor of the complainant. Mr. Liclican also claimed
that by reason of complainant’s failure to pay her obligation after the lapse of more than four
years, he tried to collect the loan from the respondent, who acted as a guarantor.
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ISSUE:
Whether or not the respondent is allowed to notarize outside the area of her commission?
RULING
NO. Notarization is not an empty, meaningless, routinary act. It is invested with
substantive public interest, such that only those who are qualified or authorized may act as
notaries public. The protection of that interest necessarily requires that those not qualified or
authorized to act must be prevented from imposing upon the public, the courts, and the
administrative offices in general. 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 the authenticity thereof. Whether the respondent derived profit from her act
of notarizing outside the area of her authority is of no moment. The fact remains that she notarized
outside the area of her commission. The penalty of fine would be a sufficient sanction.
RULING:
WHEREFORE, the Court hereby MODIFIES the resolution of the IBP Board of Governors
and hereby imposes on respondent ATTY. ROSALIE DALLONG-GALICINAO a fine of Ten
Thousand Pesos (P10,000) for misconduct as a notary public.
VICTORINO SIMON vs JUDGE ALIPIO M. ARAGON
450 SCRA 414
FACTS:
Victorino Simon charged respondent, Judge Alipio M. Aragon, the presiding judge of the
Municipal Circuit Trial Court of San Pablo and Cabagan, Isabela, with conduct unbecoming of an
officer.Complainant alleged that he engaged in unauthorized notarial practice having undertaken
the preparation and acknowledgment of private documents, contracts and other acts of
conveyances without direct relation to the performance of his functions as a member of the
judiciary.
Judge admitted that he notarized the documents but explained that he was constrained to
do so as there was no lawyer or notary public in San Pablo, Isabela from 1983 to 1992. He
clarified that, upon learning of Circular No. 1-90 sometime in 1993, he immediately and voluntarily
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desisted from further notarizing private documents. He further claimed that he never profited from
his acts of notarization since the parties paid the notarial fees with the Office of the Municipal
Treasurer of San Pablo.
ISSUE:
Whether or not an MTCT Judge can notarized private documents where no lawyer or
notary public is available?
RULING:
Circular No. 1-90 specifically delineates the power of Municipal Trial Court judges and
Municipal Circuit Trial Court judges to act as notaries public ex-officio. However, for MTC and
MCTC judges assigned to municipalities or circuits with no lawyers or notaries public to validly
perform any act of a regular notary public, two requisites must concur:
1. All notarial fees charged must be for the account of the Government and turned over to
the municipal treasurer; and
2. Certification be made in the notarized documents attesting to the lack of any lawyer or
notary public in such municipality or circuit.
The court finds the respondent judge guilty of engaging in unauthorized notarial work
without complying with the requirement of certification as to lack of a notary public within his
municipality or circuit. The respondent judge was fined the amount of One Thousand Pesos
(P1,000.00) for unauthorized notarization of a private document.
ELEMAR G. BOTE vs JUDGE GEMINIANO A. EDUARDO
451 SCRA 9
FACTS:
Herein petitioner together with his wife bought a parcel of land. Although the Deed of Sale
had already been prepared, it was not immediately delivered to the spouses because they have
yet to pay the full purchase price. After settling their obligation, the seller delivered the Deed for
notarization. However, the respondent Judge erroneously dated the notarized document to March
19, 1985 instead of March 19, 1986. As a result, civil and criminal charges were filed against the
petitioner, and a warrant was issued for his arrest.
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Over the years, petitioner made many requests on respondent to rectify the error, but the
latter merely ignored the same. A final demand letter with an attached certified copy of the notarial
register was sent, but was likewise denied by the respondent by issuing a certification that the
Deed was really notarized on March 19, 1985. Thus, the petitioner filed the instant administrative
complaint against the respondent for serious neglect of duty and grave misconduct for his
malicious refusal to correct such error, presenting the certification on the entry in the notarial
register that such Deed was notarized on March 19, 1986. On another hand, the respondent
argued that the Deed was the best evidence of the date of notarization and that the Court need not
look at the notarial registry. He questioned the entry in the notarial registry, stating that it was of
doubtful veracity because it was not in his handwriting. He surmised that one of the parties to the
deed inserted the purported date of execution as September 16, 1985 since it was not in his
handwriting, and that his clerk was responsible of filling-out dates in documents and entries in the
notarial register for him.
On November 18, 2003, the Office of the Court Administrator issued its findings declaring
respondent administratively liable. In its Memorandum, the OCA recommended that a fine
of P10,000 be imposed upon respondent, to be deducted from his retirement benefits.
ISSUE:
Whether or not the respondent Judge is negligent and is liable therefore.
RULING:
YES. The Court held that respondent Judge is liable for his erroneous notarization. The
findings of the Office of the Court Administrator that the respondent is negligent were borne by the
records. The Deed was prepared in 1985. Based on the records, the CTCs of both parties to the
Deed appeared to be on September 16, 1985, which was already six months after the Deed was
allegedly notarized by the respondent as claimed by him. It was further proven that the Deed was
entered on March 19, 1986 in the notarial register. Respondent claimed that he notarized the deed
on March 19, 1985. However, he could not have possibly notarized the deed, with the vendor’s
residence certificate’s date of issue already typewritten, six months before the residence certificate
was issued. More convincing is complainant’s assertion that respondent notarized the deed on
March 19, 1986, except that in filling in the date of notarization, respondent did not notice that the
year 1985 was already typed in. A notarial register is a prima facie evidence of the facts stated
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therein. It has the presumption of regularity and to contradict the veracity of the entry, evidence
must be clear, convincing, and more than merely preponderant. Here, respondent had not been
able to successfully assail the veracity of the entry. He contended that it was not in his
handwriting, but he himself had declared that his clerk made the entries in the register for him,
thus revealing why the entry was not in his handwriting. The respondent was also negligent when
he notarized the Deed with unfilled spaces, making uncertified and fraudulent insertions easy to
accomplish. Notarization is not an empty, meaningless, routinary act. It is invested with such
substantial public interest that only those who are qualified or authorized may act as notaries
public. Notarization converts a private document into a public document, making that document
admissible in evidence without further proof of its authenticity. For this reason, notaries must
observe with utmost care the basic requirements in the performance of their duties. Otherwise, the
confidence of the public in the integrity of this form of conveyance would be undermined.
Respondent’s lack of due care in the performance of his delicate task as ex officio notary
public clearly rendered him administratively liable. Nonetheless, the Court could not agree with the
OCA’s recommended penalty. Even considering that respondent consistently refused to recognize
his error after he has been informed of it, the Court believes that respondent’s infraction would not
warrant a stiff fine of P10,000. Rather, considering the circumstances, a fine of P5,000 would have
been more appropriate for simple negligence. On record, however, we find that respondent
already passed away on June 11, 2001.Thus, in this case, for humanitarian reasons, we find it
inappropriate to impose any administrative liability of a punitive nature. Even a fine lower than that
recommended by OCA, in our view, could no longer be imposed under the circumstances of this
case. OCA’s recommendation was contained in its finding of administrative liability only on
November 18, 2003, a year and a half after respondent’s demise. As well said in Apiag v. Judge
Cantero, involving also gross misconduct and neglect, “[f]or such conduct, this Court would have
imposed a penalty. But in view of his death prior to the promulgation of this Decision, dismissal of
the case is now in order.” It behooves us now to declare the instant complaint DISMISSED,
by the Board of Governors. As modified, respondent ATTY. HEHERSON ALNOR G.
SIMPLICIANO is hereby BARRED PERMANENTLY from being commissioned as Notary
Public. He is furthermore SUSPENDED from the practice of law for two (2) years,
effective upon receipt of a copy of this Decision.
MEDINA vs GREENFIELD DEVELOPMENT CORP.
443 SCRA 150
FACTS:
Petitioners are the grandchildren of Pedro Medina from two marriages. In his first marriage
to Isadora San Jose, Pedro sired three children: Rafael, Rita and Remegia; in his second
marriage, this time to Natalia Mullet, Pedro had five: Cornelio, Brigida, Balbino, Crisanta and
Rosila. Except for Balbino and Crisanta, all of Pedro’s children likewise bore children, the
petitioners in this case.
On June 5, 1962, Pedro, his brother Alberto Medina and his niece Nazaria Cruz (Alberto’s
daughter) executed a notarized Contract to Sell in favor of respondent Greenfield Development
Corporation over a parcel of land located in Muntinlupa City, then in the Province of Rizal, covered
by Transfer Certificate of Title (TCT) No. 100177 (Lot 90-A) and measuring 17,121 square meters.
A notarized Deed of Sale covering said property was subsequently entered into on June 27, 1962,
in favor of respondent, and this time signed by Pedro, Cornelio, Brigida, Balbino, Gregoria,
Crisanta, Rosila, and Alberto, all surnamed Medina, and Nazaria Cruz, as vendors. Hereafter, a
notarized Deed of Absolute Sale with Mortgage was executed on September 4, 1964 in favor of
respondent over Lot 90-B covered by TCT No. 100178, measuring 16,291 square meters. Signing
as vendors were Pedro, Cornelio, Brigida, Balbino, Gregoria, Crisanta, Rosila, and Alberto, all
surnamed Medina, and Nazaria Cruz. By virtue of these sales, respondent was able to register in
its name the title to the two parcels of land with TCT No. 100578 covering Lot 90-A and TCT No.
133444 covering Lot 90-B. These properties were consolidated with other lots and were eventually
registered on July 19, 1995, in the name of respondent.
On November 6, 1998, petitioners instituted Civil Case No. 98-233, an action for
annulment of titles and deeds, reconveyance, damages with preliminary injunction and restraining
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order, against respondent and the Register of Deeds of Makati. Included in the complaint are the
heirs of Nazaria Cruz, as unwilling co-plaintiffs. Petitioners allege in their complaint that they are
co-owners of these two parcels of land. While the titles were registered in the names of Pedro,
Alberto, Cornelio, Brigida and Gregoria, all surnamed Medina, they alleged that they were
recognized as co-owners thereof. In support of their case, petitioners maintain that the deeds of
sale on these properties were simulated and fictitious, and the signatures of the vendors therein
were fake.
Despite the transfer of the title to respondent’s name, they remained in possession thereof
and in fact, their caretaker, a certain Santos Arevalo and his family still reside on a portion of the
property. On July 13, 1998, petitioners caused an adverse claim to be annotated on the titles.
After discovering the annotation, respondent constructed a fence on the property and posted
security personnel, barring their ingress and egress. Thus, petitioners sought, among others, the
issuance of a temporary restraining order and a writ of preliminary injunction enjoining respondent
and its agents and representatives from preventing petitioners to exercise their rights over the
properties. Respondent denied the allegations, stating that petitioners have no valid claim on the
properties as it is already titled in its name by virtue of the public documents executed by their
predecessors. As counterclaim, respondent alleged that Santos Arevalo is not petitioners’
caretaker and it was them who employed him as caretaker.
ISSUE:
Whether or not the deeds of sale were valid?
RULING:
What tilt the balance in respondent’s favor are the notarized documents and the titles to
the properties. The well-settled rule is that a document acknowledged before a notary public
enjoys the presumption of regularity. It is a prima facie evidence of the facts therein stated. To
overcome this presumption, there must be presented evidence that is clear and convincing.
Absent such evidence, the presumption must be upheld. In addition, the titles in the name of
respondent, having been registered under the Torrens system, are generally a conclusive
evidence of the ownership of the land referred to therein, and a strong presumption exists that the
titles are regularly issued and valid. Therefore, until and unless petitioners show that the
documents are indeed spurious and the titles invalid, then the presumptions must prevail at this
juncture.
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Petitioners also claim that they are in actual possession of the property. As alleged in their
complaint, they instituted Santos Arevalo, a co-petitioner, as caretaker. They also alleged in their
petition filed before this Court that Balbino and Yolanda Medina and their respective families are
still residing on a portion of the property. Respondent belies their claim, declaring that it employed
Arevalo as caretaker. Respondent presented a notarized Receipt and Quitclaim dated April 26,
1994, signed by Arevalo, who attested that he was employed by respondent as caretaker and that
his stay on the property was a mere privilege granted by respondent.
Possession and ownership are two different legal concepts. Just as possession is not a
definite proof of ownership, neither is non-possession inconsistent with ownership. Even assuming
that petitioners’ allegations are true, it bears no legal consequence in the case at hand because
the execution of the deeds of conveyances is already deemed equivalent to delivery of the
property to respondent, and prior physical delivery or possession is not legally required. Under
Article 1498 of the Civil Code, “when the sale is made through a public instrument, the execution
thereof shall be equivalent to the delivery of the object of the contract, if from the deed the contrary
does not appear or cannot be inferred.” Possession is also transferred, along with ownership
thereof, to respondent by virtue of the notarized deeds of conveyances.
ZENAIDA B. TIGNO, ET AL. vs SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the CA
444 SCRA 61
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
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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 Cariño
(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. 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 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.
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 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. 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
Cariño, to notarize the document.
ISSUES:
Whether or not a deed of sale subscribed by way of jurat, not by acknowledgement is
admissible as evidence.
Whether 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 Cariño is authorized to notarize a deed of sale.
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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 Cariño 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 Cariño, 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.
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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.
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 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.
Since the the Deed of Sale was offered in evidence as authentic by the Aquinos, the
burden falls upon the Aquinos to prove its authenticity. However, as 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 which was not duly considered by the Court of Appeals. The testimonies of Judge
Cariño and De Francia now become material not only to establish due execution, but also the
authenticity of the Deed of Sale. Nevertheless, the inconsistencies in the testimonies of Judge
Cariño and De Francia are irreconcilable. De Francia testified that Judge Cariño himself prepared
and typed the Deed of Sale in his office, where the document was signed,while Judge Cariño
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.
The totality of the picture leads the Court 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.
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.
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FELIX AZUELA vs COURT OF APPEALS
487 SCRA 119
FACTS:
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules in the execution of
notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which
the will is written is fatally defective. A will whose attestation clause is not signed by the
instrumental witnesses is fatally defective. And perhaps most importantly, a will which
does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of
these defects is sufficient to deny probate. A notarial will with all three defects is just
aching for judicial rejection.
The case stems from a petition for probate filed on 10 April 1984 with the
Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought
to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June
1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino:
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang
Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng
lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang
panig ng lahat at bawa’t dahon ng kasulatan ito.
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The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
decedent. Geralda Castillo claimed that the will is a forgery, and that the true purpose of
its emergence was so it could be utilized as a defense in several court cases filed by
oppositor against petitioner, particularly for forcible entry and usurpation of real property,
all centering on petitioner’s right to occupy the properties of the decedent. It also
asserted that contrary to the representations of petitioner, the decedent was actually
survived by 12 legitimate heirs, namely her grandchildren, who were then residing
abroad. Per records, it was subsequently alleged that decedent was the widow of
Bonifacio Igsolo, who died in 1965, and the mother of a legitimate child, Asuncion E.
Igsolo, who predeceased her mother by three (3) months. Oppositor Geralda Castillo
also argued that the will was not executed and attested to in accordance with law. She
pointed out that decedent’s signature did not appear on the second page of the will, and
the will was not properly acknowledged. These twin arguments are among the central
matters to this petition.
ISSUE:
WHETHER OR NOT the will was not executed and attested to in accordance
with the law.
RULING:
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person in
his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court.
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The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages. The failure to state the number of pages
equates with the absence of an averment on the part of the instrumental witnesses as to
how many pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to.
An acknowledgement is not an empty meaningless act. The acknowledgment
coerces the testator and the instrumental witnesses to declare before an officer of the
law that they had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the criminal
prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of
assurance that the testator is of certain mindset in making the testamentary dispositions
to those persons he/she had designated in the will.
All told, the string of mortal defects which the will in question suffers from makes
the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
PAN PACIFIC INDUSTRIAL SALES CO., INC. vs COURT OF APPEALS and NICOLAS CAPISTRANO.
482 SCRA 164
FACTS:
On 10 September 1982, Capistrano executed a Special Power of Attorney authorizing
Cruz to mortgage the subject lot in favor of Associated Bank (the Bank) as security for the latter’s
loan accommodation.
Shortly, by virtue of the Special Power of Attorney, Cruz obtained a loan in the amount
of P500,000.00 from the Bank. Thus, he executed a Real Estate Mortgage over the subject lot in
favor of the Bank.
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Capistrano and Cruz then executed a letter-agreement dated 23 September 1982 whereby Cruz
agreed to buy the subject lot for the price of P350,000.00, of which P200,000.00 would be paid out
of the loan secured by Cruz, and the balance of P150,000.00 in eight (8) quarterly payments of
P18,750.00 within two (2) years from 30 October 1982, without need of demand and with interest
at 18% in case of default.
On 15 March 1983, Capistrano executed the Deed of Absolute Sale over the subject lot in
favor of Cruz. Two (2) days later, on 17 March 1983, Notary Public Vicente J. Benedicto
(Benedicto) notarized the deed. However, it was earlier or on 9 March 1983 that Capistrano’s wife,
Josefa Borromeo Capistrano, signed the Marital Consent evidencing her conformity in advance to
the sale. The Marital Consent was also sworn to before Benedicto.
Following the execution of the deed of sale, Cruz continued payments to Capistrano for
the subject lot. Sometime in October 1985, Capistrano delivered to Cruz a Statement of
Account signed by Capistrano, showing that as of 30 October 1985, Cruz’s balance stood
at P19,561.00 as principal, and P3,520.98 as interest, or a total ofP23,081.98.
Thus, in May 1987, with the mortgage on the subject lot then being in danger of
foreclosure by the Bank, Cruz filed a case with the RTC of Manila, Branch 11, docketed as Civil
Case No. 87-40647, to enjoin the foreclosure. Cruz impleaded Capistrano and his spouse Josefa
Borromeo Capistrano as defendants, the title to the subject lot not having been transferred yet to
his name.
Pan Pacific, which bought the subject lot from the Cruz spouses, was allowed to intervene
in the proceedings and joined Cruz, in resisting the complaint insofar as the first cause of action on
the subject lot is concerned.
ISSUE:
Whether or not the rescision of deed of absolute sale may be granted.
RULING:
The petition is imbued with merit.
Deeply embedded in our jurisprudence is the rule that notarial documents celebrated with
all the legal requisites under the safeguard of a notarial certificate is evidence of a high character
and to overcome its recitals, it is incumbent upon the party challenging it to prove his claim with
clear, convincing and more than merely preponderant evidence.
A notarized document carries the evidentiary weight conferred upon it with respect to its
due execution, and it has in its favor the presumption of regularity which may only be rebutted by
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evidence so clear, strong and convincing as to exclude all controversy as to the falsity of the
certificate. Absent such, the presumption must be upheld. The burden of proof to overcome the
presumption of due execution of a notarial document lies on the one contesting the same.
Furthermore, an allegation of forgery must be proved by clear and convincing evidence, and
whoever alleges it has the burden of proving the same.
Evidently, as he impugns the genuineness of the documents, Capistrano has the burden
of making out a clear-cut case that the documents are bogus. The courts below both concluded
that Capistrano had discharged this burden. However, this Court does not share the conclusion.
Indeed, Capistrano failed to present evidence of the forgery that is enough to overcome the
presumption of authenticity.
Corollarily, he who disavows the authenticity of his signature on a public document bears
the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very
least, he should present corroborating witnesses to prove his assertion. At best, he should present
an expert witness.
The courts below also assigned an adverse connotation to Cruz’s impleading of the
Capistrano spouses as party-defendants in the action against the Bank to enjoin the foreclosure of
the mortgage on the subject lot. Cruz’s move is congruent with both his strong desire to protect his
interest in the subject lot and the reality that there was an existing deed of sale in his favor.
Precisely, his interest in the lot is borne out and had arisen from the deed of sale. As purchaser of
the lot, he had to avert the foreclosure of the mortgage thereon. And to ensure against the
dismissal of the action for failure to join a real party-in-interest, he had to implead Capistrano in
whose name the title to the subject lot was registered still.
The use of a jurat, instead of an acknowledgement does not elevate the Marital Consent
to the level of a public document but instead consigns it to the status of a private writing. The lack
of acknowledgment, however, does not render a deed invalid. The necessity of a public document
for contracts which transmit or extinguish real rights over immovable property, as mandated by
Article 1358 of the Civil Code, is only for convenience; it is not essential for validity or
enforceability.
WHEREFORE, the Petition is GRANTED. The Decision dated 4 June 1996 of the Court of
Appeals in CA-G.R. CV No. 41112 is REVERSED and SET ASIDE. Respondent Nicolas
Capistrano is ordered to surrender the owner’s duplicate certificate of Transfer of Certificate of
Title No. 143599 to the Register of Deeds of Manila to enable the issuance of a new title over the
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subject lot in the name of petitioner Pan Pacific Industrial Sales, Inc. Costs against respondent
Nicolas Capistrano.
VICTORINA BAUTISTA vs ATTY. SERGIO E. BERNABE
482 SCRA 1
FACTS:
Complainant alleged that on January 3, 1998, respondent prepared and notarized a
Magkasanib na Salaysay purportedly executed by Donato Salonga and complainant’s mother,
Basilia de la Cruz. Both affiants declared that a certain parcel of land in Bigte, Norzagaray,
Bulacan, was being occupied by Rodolfo Lucas and his family for more than 30 years.
Complainant claimed that her mother could not have executed the joint affidavit on January 3,
1998 because she has been dead since January 28, 1961.
In his Answer, respondent denied that he falsified the Magkasanib na Salaysay. He
disclaimed any knowledge about Basilia’s death. He alleged that before he notarized the
document, he requested for Basilia’s presence and in her absence, he allowed a certain Pronebo,
allegedly a son-in-law of Basilia, to sign above the name of the latter as shown by the word "by" on
top of the name of Basilia. Respondent maintained that there was no forgery since the signature
appearing on top of Basilia’s name was the signature of Pronebo.
ISSUE:
WHETHER OR NOT respondent act unethical conduct in the performance of his duties as
notary public.
RULING:
In a Complaint filed before the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) on November 16, 2004, complainant Victorina Bautista prays for the suspension
or disbarment of respondent Atty. Sergio E. Bernabe for malpractice and unethical conduct in the
performance of his duties as a notary public and a lawyer.
The records sufficiently established that Basilia was already dead when the joint affidavit
was prepared on January 3, 1998. Respondent’s alleged lack of knowledge of Basilia’s death does
not excuse him. It was his duty to require the personal appearance of the affiant before affixing his
notarial seal and signature on the instrument.
A notary public should not notarize a document unless the persons who signed the same
are the very same persons who executed and personally appeared before him to attest to the
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contents and truth of what are stated therein. The presence of the parties to the deed will enable
the notary public to verify the genuineness of the signature of the affiant.
By affixing his signature and notarial seal on the instrument, he led us to believe that
Basilia personally appeared before him and attested to the truth and veracity of the contents of the
affidavit when in fact it was a certain Pronebo who signed the document. Respondent’s conduct is
fraught with dangerous possibilities considering the conclusiveness on the due execution of a
document that our courts and the public accord on notarized documents. Respondent has clearly
failed to exercise utmost diligence in the performance of his function as a notary public and to
comply with the mandates of the law.
Respondent was also remiss in his duty when he allowed Pronebo to sign in behalf of
Basilia. A member of the bar who performs an act as a notary public should not notarize a
document unless the persons who signed the same are the very same persons who executed and
personally appeared before him. They should swear to the document personally and not through
any representative.
WHEREFORE, for breach of the Notarial Law and Code of Professional Responsibility,
the notarial commission of respondent Atty. Sergio E. Bernabe, is REVOKED. He is
DISQUALIFIED from reappointment as Notary Public for a period of two years. He is also
SUSPENDED from the practice of law for a period of one year, effective immediately. He is further
WARNED that a repetition of the same or of similar acts shall be dealt with more severely. He is
DIRECTED to report the date of receipt of this Decision in order to determine when his suspension
shall take effect.
TAGUNICAR ET AL. vs LORNA EXPRESS CREDIT CORP.
483 SCRA 486
FACTS:
Spouses Elsa and Emerson Tagunicar (petitioners) obtained a loan of
P60,000.00 from Lorna Express Credit Corporation (respondent). As security, they
executed a deed of mortgage over their two unregistered lots with improvements located
at Upper Bicutan, Taguig, Metro Manila.
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Subsequently, because of the failure of the petitioners to pay said loan, the
respondent filed with the RTC of Makati City a complaint for sum of money amounting to
P223,057.34 (representing the principal and interests) against petitioners. The RTC,
however, dismissed the complaint for respondent’s failure to prosecute. Meantime, due
to the inability of petitioners to pay their loan (now amounting to P740,254.87),
respondent, through its counsel, filed with the Office of the Sheriff of Taguig, Metro
Manila an application for extra judicial foreclosure under Act No. 3135, as amended.
On September 29, 1997, the Notice of Auction Sale was issued by the Office of
Notary Public. It was (1) posted at three public places in the municipalities of Taguig and
Pasig; and (2) published in Bongga once a week for three consecutive weeks (October
4, 11 and 18, 1997), setting the auction sale of the mortgaged property on October 24,
1997 at ten o’clock in the morning at the main entrance of the Taguig Municipal Hall.
Petitioners immediately filed with the RTC a petition for prohibition from
proceeding with the auction sale. The petition and the subsequent motion for
reconsideration were denied by the RTC. This prompted petitioners to file with the Court
of Appeals a petition for review, which was also denied. Hence, the petition for review on
certiorari before the Supreme Court. Petitioners alleged that the said auction sale was
set, not after the third publication, but only after the first publication, in violation of
Section 3 of Act No. 3135, as amended, and that the law applicable for extrajudicial
foreclosure of a mortgage and auction sale is the Supreme Court Administrative Order
no. 3, and thus, the foreclosure proceedings before a notary public is null and void.
ISSUE:
Whether or not the foreclosure proceedings before the notary public is null and
void.
RULING:
No, the foreclosure proceeding before the notary public is valid.
As to the petitioners’ contention that the notice of auction sale did not comply
with the requirements in Section 3, Act No. 3135, records show that the notice of auction
sale was posted in three public places in the Municipality of Taguig and Pasig City. The
said notice was published once a week for three consecutive weeks or on October 4, 11
and 18, 1997 in Bongga, a newspaper of general circulation. Thus, the mandatory
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requirements of notice and publication provided in Section 3, Act No. 3135, as amended,
were complied with.
As to the authority of the Notary Public to conduct public auction, Section 4 of Act
No. 3135, as amended, provides:
Sec. 4. The sale shall be made at public auction, between the hours of nine in the
morning and four in the afternoon; and shall be under the direction of the sheriff of the
province, the justice or auxiliary justice of the peace (now municipal or auxiliary
municipal judge) of the municipality in which such sale has to be made, or a NOTARY
PUBLIC of said municipality, who shall be entitled to collect a fee of five pesos for each
day of actual work performed, in addition to his expenses.
Clearly, the Notary Public is authorized to direct or conduct a public auction.
WHEREFORE, the petition is denied. The assailed decision of the CA is
affirmed.
MALLARI vs ALSOL
484 SCRA 148
Facts:
Stalls No. 7 and 8 of the Supermarket Section of the Cabanatuan City Public
Market were awarded to and occupied by Abelardo Mallari ("Abelardo"), father of Manuel
Mallari ("Manuel") and Rebecca Alsol ("respondent"). Before Abelardo’s death on 16
July 1986, he gave the stalls to Manuel and respondent. Manuel and his wife Millie
Mallari ("petitioners") occupied Stall No. 7 while respondent and her husband Zacarias
Alsol occupied Stall No. 8.
In July 1988, respondent’s daughter became sick and the Alsol family had to stay
in Manila for two months for the medical treatment. They returned to Cabanatuan City in
September 1988 only to find out that petitioners were already occupying Stall No. 8. The
partition between Stalls No. 7 and 8 had been removed and respondent’s merchandise
and things were already gone. Petitioners refused respondent’s demand to vacate Stall
No. 8.
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Respondent sought the help of the City Market Committee ("Committee"). On 5
May 1989, the Committee passed Kapasiyahan Blg. 1, s-1989 granting Stall No. 7 to
Manuel and Stall No. 8 to respondent. On 4 June 1990, respondent and the City
Government of Cabanatuan ("City Government"), represented by City Mayor Honorato
C. Perez ("Mayor Perez"), executed a Contract of Lease ("Lease Contract"). The Lease
Contract granted respondent the right to occupy Stall No. 8 for a monthly rental of P316
subject to increase or decrease in accordance with the rules and ordinances of the City
Government.
ISSUE:
Whether the Lease Contract executed between respondent and the City
Government is valid.
RULING:
Petitioners allege that the Court of Appeals erred in applying Republic Act No.
7160, otherwise known as the Local Government Code of 1991, which took effect on 1
January 1992 or long after the execution of the Lease Contract on 4 June 1990. The
Court agrees with petitioners that RA 7160 is not the applicable law. Instead, the Court
of Appeals should have applied Batas Pambansa Blg. 337 or the old Local Government
Code. Still, even under BP 337, city mayors have the authority to sign contracts on
behalf of city governments.
Petitioners also allege that the Lease Contract is not valid because Mayor Perez
did not appear before the notary public who notarized the document.
Notarization converts a private document into a public document. However, the
non-appearance of the parties before the notary public who notarized the document
does not necessarily nullify nor render the parties’ transaction void ab initio. Thus:
x x x Article 1358 of the New Civil Code on the necessity of a public document is only for convenience, not for validity or enforceability. Failure to follow the proper form does not invalidate a contract. Where a contract is not in the form prescribed by law, the parties can merely compel each other to observe that form, once the contract has been perfected. This is consistent with the basic principle that contracts are obligatory in whatever form they may have been entered into, provided all essential requisites are present.
Hence, the Lease Contract is valid despite Mayor Perez’s failure to appear