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.

D E C I S I O N

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 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. 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 Cariño 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 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.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 Cariño, 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 CARIÑOEx-Officio Notary PublicJudge, 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 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.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 Cariño.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 Cariño 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 Cariño, 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 Cariño 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.37 The facts of this case do not warrant a relaxed attitude towards Judge Cariño'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 Cariño, who ceased being a judge in 1986, for his improper notarial activity. Perhaps though, formal sanction may no longer be appropriate considering Judge Cariño'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.40 Thus, 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 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.

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 judgment—an 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 Cariño. 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 Cariño himself prepared and typed the Deed of Sale in his office, where the document was signed,47 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.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 Cariño 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 Cariño 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 Cariño 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 Cariño 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 Cariño 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 Cariño, would be obviously compromised. Assuming that Judge Cariño 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 Cariño. 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.

AILEEN A. FERANCULLO, A.C. No. 7214 Complainant, Present:

PANGANIBAN, C.J.,

PUNO, - versus - QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO, AUSTRIA-

MARTINEZ, CORONA, CARPIO

MORALES,ATTY. SANCHO M. FERANCULLO, CALLEJO, SR., JR., AZCUNA, Respondent. TINGA,

CHICO-NAZARIO,

GARCIA, and

VELASCO, JR., JJ.

 Promulgated:November 30, 2006

  x--------------------------------------------------------------------------------- x 

 

D E C I S I O N TINGA, J. 

Tell the truth and shame the DevilShakespeare-Henry IV, Part I, III-1

  

 

 

Before the Court is an administrative complaint for

disbarment filed by Aileen Ferancullo (petitioner) against

Atty. Sancho M. Ferancullo, Jr. (respondent) grounded on

his alleged commission of estafa, bigamy and violation of

the lawyer’s oath. Both parties have starkly contrasting

stories to tell. Hence, the necessity of presenting both

versions.

 In a verified complaint dated December 17, 2004,1[1]

complainant narrated how respondent allegedly took

advantage of their attorney-client relationship to extort

money from her in consideration of the out-of-court

settlement of her criminal cases and deceived her into

marrying him by concealing his previous marriage.

 Her complaint-affidavit narrated that sometime in

February 2004, a certain SPO1 Lino Taytay referred her to

respondent as she was in need of legal aid concerning a

string of complaints for estafa filed against her. They

allegedly agreed to a monthly retainer fee of P10,000.00 in

consideration for respondent’s legal services; the first

payment thereof made in the same month of February at her

residence in Central Park Condominium, Pasay City.

Respondent purportedly advised complainant to stay for the

meantime at his office located at GF-7, Elenel Apt., 2243

Luna corner Mabolo Sts., Pasay City, to avoid arrest and to

keep her safe from the people suing and threatening her. He

allegedly went to the extent of sending his cousin, Felix

Reyes, to fetch complainant from her residence. At night,

1

complainant and respondent, together with the latter’s office

staff, went out for dining and relaxation.2[2]

 Complainant recounted further that respondent

prodded her to move into a more secure location, the Youth

and Student Travel Association of the Philippines in

Parañaque.3[3] That allegedly became the start of his

courtship. Complainant averred that respondent would send

her breakfast and flowers. When asked about his personal

circumstances, respondent supposedly told complainant that

he was still single although he had a child out of wedlock.

Complainant also maintained that she saw no apparent

indications suggesting that respondent was married.4[4]

 As indicative of their romantic relationship,

respondent and complainant allegedly traveled to different

places. According to complainant, respondent took her to

Antipolo to meet his relatives and to Mindoro to attend the

2

3

4

birthday celebration of his mother. They also purportedly

went to Cebu City to meet complainant’s eldest child.5[5]

 Complainant claimed that in the beginning,

respondent diligently attended to her cases and advised her

not to appear at the hearings before the Office of the

Prosecutor, assuring her that he would attempt at a

compromise agreement with the adverse parties. For this

purpose, between February and July 2004, complainant

purportedly entrusted to respondent varying amounts of

money totaling Four Hundred Thirty One Thousand Pesos

(P431,000.00) based on his assurance that her cases merely

involved money claims which can be settled amicably.

Complainant claimed that she had to ask this amount from

her parents. Complainant did not ask from respondent for

any receipt evidencing the transaction.6[6]

 Complainant further alleged that she and respondent

moved to a unit at Parrison Tower at F.B. Harrison, Pasay

City sometime in April 2004, where they started living

together as husband and wife. The unit was purportedly

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6

owned by a client of respondent who agreed to offset the

amount of rental with the legal fees due him.7[7]

 To corroborate her allegation that they lived together

as husband and wife, complainant annexed to her complaint-

affidavit five (5) photographs, three of which show intimate

poses of complainant and respondent.8[8] Complainant also

recounted that during respondent’s birthday celebration held

on May 28, 2004 at the rooftop of the Parrison Tower, he

supposedly introduced complainant as his wife to his

guests.9[9] Complainant attached a VCD copy documenting

the event to her reply to respondent’s answer.10[10] As

averred, at the start of the video, complainant can be seen

entertaining the guests and overseeing the food preparation.

Early in the party, complainant’s three children arrived.

While respondent was walking around and entertaining the

guests, complainant stood behind the buffet table

supervising last minute preparation before the food was

served. As the guests started to get food from the buffet

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8

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table, complainant approached respondent. Respondent

placed his hand on the hips of complainant while the latter

whispered at him. All throughout the video, complainant

was either standing behind the buffet table or conversing

with respondent and the guests.

  Complainant found out that she was pregnant

sometime in June 2004. On August 4, 2004, complainant

and respondent allegedly wed in a rite solemnized in Kawit,

Cavite.11[11] In support of this averment, complainant

annexed to the complaint a photocopy of the marriage

certificate.12[12]

 Two (2) months thereafter, in a casual conversation

with a certain Teresita Santos, another client of respondent,

Santos told complainant that respondent was already married

to a certain Marlin M. Maranan. Complainant then

confronted respondent who allegedly admitted that he was

married but assured complainant that he was ready to leave

his wife so that they can be together. The relationship

11

12

between complainant and respondent turned sour eventually

leading to their separation.13[13]

 Complainant sought assistance from the Integrated

Bar of the Philippines (IBP). In a letter dated 14 October

2006, Atty. Romarico Ayson sent a demand letter to

respondent, urging the latter to shoulder complainant’s

hospitalization until her delivery and provide monthly

support for the child in the amount of Thirty Thousand

Pesos (P30,000.00) thereafter.14[14]

  Complainant averred that since their separation,

respondent and his agents had been threatening her with

arrest and lawsuits. She also discovered that the criminal

complaints remained pending filed against her with the

Office of the Prosecutor. She claimed that respondent

himself had been exerting efforts so that the criminal

complaints against her would proceed.15[15]

 

13

14

15

In compliance with the IBP Order dated 6 January

2005, respondent filed an answer,16[16] denying the

allegations that he committed estafa, maintained an illicit

relationship and contracted a bigamous marriage with

complainant. While admitting that complainant sought his

legal services in connection with the latter’s cases for estafa

and illegal recruitment pending before the Office of the

Prosecutor, respondent insisted that his relationship with

complainant was purely professional. In particular, he

claimed that the purpose of his visits to complainant’s

residence was to show her court orders issued in relation to

her cases. He also averred that it was complainant who

sought refuge in his office and invited him and his legal staff

for dinners to discuss her cases.17[17]

    Respondent maintained that complainant insisted on

skipping the scheduled hearings before the Office of the

Prosecutor. He also denied receiving P431,000.00 from

complainant, arguing that on the alleged dates of payments,

16

17

he was out for court appearances.18[18] He admitted going to

Cebu City upon the behest of complainant who shouldered

all his expenses, but the visit was only for the purpose of

discussing the cases with complainant’s parents.19[19]

Respondent denied meeting complainant’s eldest child in

Cebu City and all the other alleged trips they took together.20

[20]

  Respondent likewise denied courting complainant

asserting that the latter had already known since February

2004 that he was married.21[21] He claimed to be happily

married to his legal wife. He denied living in together with

complainant or providing a residence for complainant.

According to him, complainant vacated her residence at

Central Park Condominium, Pasay City because her lease

application was denied.22[22] While he admitted that the unit

at Parrison Tower at F.B. Harrison, Pasay City belonged to

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19

20

21

22

his client, respondent insisted that his relatives had been

occupying the same since March 2004, thus making it

impossible for complainant to have transferred to said unit in

April 2004.23[23]

Respondent described as contrary to human

experience the allegation of complainant that he introduced

her as his wife during his birthday celebration on 28 May

2004, where his brothers and sisters were also present. To

support this claim, he submitted the affidavits of fifteen

guests in his party, stating that respondent did not introduce

complainant as his wife.24[24]

 Respondent also denied that a marriage celebration

between him and complainant took place on 4 August 2004

or that he signed the marriage certificate and or that he got

her pregnant. He had already instituted corresponding

criminal complaints against complainant for the alleged

falsification of his signature in the marriage certificate.

Respondent claimed that complainant was extorting money

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24

from him, hence the filing of the administrative complaint.25

[25]

 Complainant submitted a Reply26[26] to respondent’s

answer to rebut his allegations. Annexed to her reply were

receipts of payments on utilities to prove that she actually

lived at Parrison Tower and a VCD copy showing the video

clip of respondent’s birthday celebration held on 28 May

2004. Complainant and respondent also filed their respective

position papers. In addition, complainant filed a

Manifestation and Reply with the following annexes: (1) a

blue polo barong and pants allegedly worn by respondent

during his birthday celebration on 28 May 2004; (2) the

original bank statement reciting the deposits made by

complainant’s parents of the amount of P431,000.00;27[27]

(3) the original passbook in the names of complainant

and respondent;28[28] and (4) the certified xerox copy from

the original of their marriage contract.29[29]

 

25

26

27

28

In response thereto, respondent moved to expunge

from the records the annexes to complainant’s Manifestation

and Reply30[30] on the ground that he was not furnished a

copy of said annexes and that the Manifestation and Reply

was an unsigned pleading. Complainant filed an opposition

thereto.31[31]

 On 20 January 2006, the Commission on Bar

Discipline of the Integrated Bar of the Philippines (IBP)

issued its Report and Recommendation to dismiss the

complaint against respondent for lack of merit. The IBP

Board of Governors adopted and approved said Report and

Recommendation in a Resolution32[32] dated 20 March

2006, finding the recommendation to be fully supported by

the evidence on record and the applicable laws and rules,

and considering that the complaint lacked merit. The IBP

believed that the complainant failed to present a clear,

convincing and satisfactory proof to warrant the disbarment

or suspension of respondent. The IBP also ruled that the

29

30

31

32

pictures and VCD not having been duly authenticated could

not be received in evidence.

 As is usual in cases of this nature, the adverse parties

presented conflicting versions. The duty to examine the

claims and counterclaims and the evidence to support them

ideally lies with the IBP, but in the instant case, its

evaluation leaves much to be desired.

 

Despite the numerous factual allegations presented by

both parties and the affidavits and documents to support

them, the IBP made only a general conclusion that

complainant must be motivated by greed in filing the instant

administrative complaint. Thus, the Court reviewed the

records.

 In administrative proceedings, the complainant has

the burden of proving, by substantial evidence, the

allegations in the complaint. Substantial evidence has been

defined as such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.33[33] For

the Court to exercise its disciplinary powers, the case against

33

the respondent must be established by clear, convincing and

satisfactory proof. Considering the serious consequence of

the disbarment or suspension of a member of the Bar, this

Court has consistently held that clear preponderant evidence

is necessary to justify the imposition of the administrative

penalty.34[34]

 Contrary to the IBP’s opinion, there is a

preponderance of evidence that respondent maintained an

illicit relationship with complainant who was not his legal

wife. It also appears that respondent contracted a second

marriage with complainant as evidenced by their marriage

certificate.

 

The best proof of marriage between man and wife is a

marriage contract.35[35] Section 7 of Rule 130 of the Rules

of Court reads as follows:

 

Sec. 7. Evidence admissible when original document is a public record.– When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved

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35

by a certified copy issued by the public officer in custody thereof.

  

The certified copy of the marriage contract, issued by

a public officer in custody thereof, was admissible as the

best evidence of its contents.36[36] The marriage certificate

plainly indicates that a marriage was celebrated between

respondent and complainant on 4 August 2004, and it should

be accorded the full faith and credence given to public

documents. The marriage certificate should prevail over

respondent’s claim that the marriage certificate or his

signature therein was falsified. The rule is that a notarized

document carries the evidentiary weight conferred upon it

with respect to its due execution, and documents

acknowledged before a notary public have in their favor the

presumption of regularity.37[37]

    

Respondent contends that the certified true copy of

the marriage contract should be expunged from the records

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37

because he was not furnished a copy thereof and the

Manifestation and Reply to which it was annexed was an

unsigned pleading. The records show otherwise. A copy of

said marriage certificate, denominated as Annex “G,”

accompanied the initiatory complaint filed before the IBP

and furnished to respondent. In fact, respondent admitted in

paragraph 61 of his answer that he received a copy of the

marriage contract.38[38] A copy of complainant’s

Manifestation and Reply, to which a certified true copy of

the questioned marriage certificate was annexed, was also

sent by registered mail to the IBP.

 The proscription against unsigned pleadings laid

down in Section 3, Rule 7 of the Rules of Court is not

applicable in the instant case. In view of its nature,

administrative proceedings against lawyers are not strictly

governed by the Rules of Court. As we held in In re

Almacen, a disbarment case is sui generis for it is neither

purely civil nor purely criminal but is rather an investigation

by the court into the conduct of its officers.39[39] Hence, an

administrative proceeding continues despite the desistance

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39

of a complainant, or failure of the complainant to prosecute

the same.40[40] Moreover, no defect in a complaint, notice,

answer, or in the proceeding or the Investigator’s Report

shall be considered as substantial unless the Board of

Governors, upon considering the whole record, finds that

such defect has resulted or may result in a miscarriage of

justice.41[41] That the copy of the Manifestation and Reply

furnished to respondent was not signed by either

complainant or her counsel is merely an innocuous error. In

any case, the copy thereof forming part of the IBP records

was signed by complainant.

 All told, the Court finds that complainant’s version is

more credible, with the caveat that the Court is not accepting

hook line and sinker every allegation of complainant. There

is substantial evidence suggesting that more than a business

or professional relationship existed between complainant

and respondent. Complainant presented certain evidence

either proving her claim or demonstrating as incredible

respondent’s defense that complainant was merely extorting

money from him. For instance, to prove her allegation that

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41

she and respondent lived together, complainant presented

the original of the retainer agreement between respondent

and the owner of the condominium building where they

allegedly lived together. Complainant also attached to her

reply copies of receipts of payments on utilities and the

original passbook of an account in the names of both

complainant and respondent. These pieces of evidence were

supposed to be under the control or custody of respondent,

but the latter offered no explanation as to how complainant

was able to produce them. If respondent’s claim is to be

believed, complainant must have gone to great lengths just

to fabricate or steal these pieces of evidence, a theory that is

not even suggested by respondent. Incidentally, vis-à-vis

complainant’s overwhelming allegations, respondent offered

only denials which are effectively self-serving and weak

under the law on evidence. Other than his general claim that

complainant only wanted money from him, respondent did

not even bother to create his own version of the supposed

extortion.

 Moreover, the VCD documenting respondent’s

birthday celebration on 28 May 2004 belied respondent’s

claim that he acted as complainant’s legal counsel only and

the concomitant assumption that she was there herself as a

guest only. In said party, complainant entertained the guests

and supervised the food preparation. Obviously, these are

not the usual actuations of a client or a guest merely invited

to a party.

 Respondent would have this Court disregard the

contents of the VCD and of the intimate photos of

respondent and complainant on the ground that under the

rules of evidence, the person who took the pictures or

videotaped the birthday party should identify and

authenticate the picture and VCD.

 Respondent’s objection will be sustained in civil or

criminal litigation, but not in an administrative proceeding

as in the instant case. In administrative proceedings,

technical rules of procedure and evidence are not strictly

applied; administrative due process cannot be fully equated

to due process in its strict judicial sense.42[42]

 The Court, however, finds no sufficient evidence

indicating that respondent falsely promised the settlement of

42

complainant’s criminal cases in consideration of the amount

of P431,000.00. The bank statements showing the deposits

made by complainant’s parents are not conclusive of said

claim because they do not prove that said amounts were

received by respondent.

 For what ethical breaches then may respondent be

held liable?

 The Code of Professional Responsibility provides:

 Rule 1.01- A lawyer shall not engage in

unlawful, dishonest, immoral or deceitful conduct. Canon 7- A lawyer shall at all times uphold the

integrity and dignity of the legal profession, and support the activities of the Integrated Bar.

 Rule 7.03- A lawyer shall not engage in conduct

that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

 

On several occasions, the Court has held that an illicit

relation is considered disgraceful and immoral conduct

which is subject to disciplinary action.43[43] In Tucay v.

Atty. Tucay,44[44] it was held:

 

x x x x indeed respondent has been carrying on an illicit affair with a married woman, grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of his profession. This detestable behavior renders him regrettably unfit and undeserving of the treasured honor and privileges which his license confers upon him.

 A lawyer may be disbarred or suspended for any

violation of his oath, a patent disregard of his duties, or an odious deportment unbecoming of an attorney. The grounds enumerated in Section 27, Rule 138, of the Rules of Court, including deceit, malpractice, or other gross misconduct in office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to the practice of law, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case

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44

 without authority to do so, are not preclusive in nature even as they are broad enough as to cover practically any kind of impropriety that a lawyer does or commits in his professional career or in his private life. A lawyer at no time must be wanting in probity and moral fiber which not only are conditions precedent to his entrance to, but are likewise essential demands for his continued membership in, a great and noble profession.45[45] 

In Dantes v. Dantes,46[46] the Court ordered the

disbarment of a lawyer, describing as grossly immoral his

conduct of engaging in illicit relationships and abandoning

his family. The Court exhorted lawyers to refrain from

scandalous behavior, thus:

 In Barrientos vs. Daarol, we ruled that as

officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or keeping mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards. If the practice of law is to remain an honorable profession and attain its basic ideals, those enrolled in its ranks should not only master its tenets and principles but should also, in their lives, accord

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46

continuing fidelity to them. The requirement of good moral character is of much greater import, as far as the general public is concerned, than the possession of legal learning.

 It should be noted that the requirement of good

moral character has three ostensible purposes, namely: (i) to protect the public; (ii) to protect the public image of lawyers; and (iii) to protect prospective clients. A writer added a fourth: to protect errant lawyers from themselves.47[47]

 

 

 

Respondent’s intimate relationship with a woman

other than his wife shows his moral indifference to the

opinion of the good and respectable members of the

community.48[48] It is a time-honored rule that good moral

character is not only a condition precedent to admission to

the practice of law. Its continued possession is also essential

for remaining in the practice of law.49[49] However, the

power to disbar must be exercised with great caution, and

only in a clear case of misconduct that seriously affects the

47

48

49

standing and character of the lawyer as an officer of the

Court and as a member of the bar. Disbarment should never

be decreed where any lesser penalty, such as temporary

suspension, could accomplish the end desired.50[50]

 The penalty for maintaining an illicit relationship may

either be suspension or disbarment, depending on the

circumstances of the case. In case of suspension, the period

would range from one year51[51] to indefinite suspension, as

in the case of Cordova v. Cordova,52[52] where the lawyer

was found to have maintained an adulterous relationship for

two years and refused to support his family.

 In Dantes v. Atty. Dantes,53[53] disbarment was

imposed as a penalty on the lawyer who maintained illicit

relationships with at least two women during the subsistence

of his marriage. And so was the case in Toledo v.

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51

52

53

Toledo54[54] and Obusan v. Obusan, Jr.,55[55] where the

lawyers subject of disciplinary actions were found to have

abandoned their legal wives and cohabited with other

women.

 The exacerbating circumstances present in the cited

cases are absent in this case. Moreover, complainant failed

to prove that respondent misappropriated her money. Thus,

the Court finds that suspension from the practice of law is

adequate to penalize respondent for his grossly immoral

conduct.

 WHEREFORE, Atty. Sancho M. Ferancullo, Jr. is

found GUILTY of gross immorality and is hereby

SUSPENDED from the practice of law for a period of two

(2) years effective upon notice hereof, with the specific

WARNING that a more severe penalty shall be imposed

should he commit the same or a similar offense hereafter.

 SO ORDERED.

G.R. No. 103047 September 2, 1994

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55

REPUBLIC OF THE PHILIPPINES, petitioner, vs.COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.

Parungao, Abesamis, Eleazar & Pulgar Law Offices for private respondent.

 

PUNO, J.:

The case at bench originated from a petition filed by private respondent Angelina M. Castro in the Regional Trial Court of Quezon City seeking a judicial declaration of nullity of her marriage to Edwin F. Cardenas. 1 As ground therefor, Castro claims that no marriage license was ever issued to them prior to the solemnization of their marriage.

Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently, he was declared in default. Trial proceeded in his absence.

The controlling facts are undisputed:

On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil ceremony performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The marriage was celebrated without the knowledge of Castro's parents. Defendant Cardenas personally attended to the processing of the documents required for the celebration of the marriage, including the procurement of the marriage, license. In fact, the marriage contract itself states that marriage license no. 3196182 was issued in the name of the contracting parties on June 24, 1970 in Pasig, Metro Manila.

The couple did not immediately live together as husband and wife since the marriage was unknown to Castro's parents. Thus, it was only in March 1971, when Castro discovered she was

pregnant, that the couple decided to live together. However, their cohabitation lasted only for four (4) months. Thereafter, the couple parted ways. On October 19, 1971, Castro gave birth. The baby was adopted by Castro's brother, with the consent of Cardenas.

The baby is now in the United States. Desiring to follow her daughter, Castro wanted to put in order her marital status before leaving for the States. She thus consulted a lawyer, Atty. Frumencio E. Pulgar, regarding the possible annulment of her marriage. Through her lawyer's efforts, they discovered that there was no marriage license issued to Cardenas prior to the celebration of their marriage.

As proof, Angelina Castro offered in evidence a certification from the Civil Register of Pasig, Metro Manila. It reads:

February 20, 1987

TO WHOM IT MAY CONCERN:

This is to certify that the names EDWIN F. CARDENAS and ANGELINA M. CASTRO who were allegedly married in the Pasay City Court on June 21, 1970 under an alleged (s)upportive marriage license no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot be located as said license no. 3196182 does not appear from our records.

Issued upon request of Mr. Ed Atanacio.

(Sgd) CENONA D. QUINTOSSenior Civil Registry Officer

Castro testified that she did not go to the civil registrar of Pasig on or before June 24, 1970 in order to apply for a license. Neither did she sign any application therefor. She affixed her signature only on the marriage contract on June 24, 1970 in Pasay City.

The trial court denied the petition. 2 It held that the above certification was inadequate to establish the alleged non-issuance of a marriage license prior to the celebration of the marriage between the parties. It ruled that the "inability of the certifying official to locate the marriage license is not conclusive to show that there was no marriage license issued."

Unsatisfied with the decision, Castro appealed to respondent appellate court. She insisted that the certification from the local civil registrar sufficiently established the absence of a marriage license.

As stated earlier, respondent appellate court reversed the Decision of the trial court. 3 It declared the marriage between the contracting parties null and void and directed the Civil Registrar of Pasig to cancel the subject marriage contract.

Hence this petition for review on certiorari.

Petitioner Republic of the Philippines urges that respondent appellate court erred when it ruled that the certification issued by the civil registrar that marriage license no. 3196182 was not in their record adequately proved that no such license was ever issued. Petitioner also faults the respondent court for relying on the self-serving and uncorroborated testimony of private respondent Castro that she had no part in the procurement of the subject marriage license. Petitioner thus insists that the certification and the uncorroborated testimony of private respondent are insufficient to overthrow the legal presumption regarding the validity of a marriage.

Petitioner also points that in declaring the marriage between the parties as null and void, respondent appellate court disregarded the presumption that the solemnizing officer, Judge Pablo M. Malvar, regularly performed his duties when he attested in the marriage contract that marriage license no. 3196182 was duly presented to him before the solemnization of the subject marriage.

The issues, being interrelated, shall be discussed jointly.

The core issue presented by the case at bench is whether or not the documentary and testimonial evidence presented by private respondent are sufficient to establish that no marriage license was issued by the Civil Registrar of Pasig prior to the celebration of the marriage of private respondent to Edwin F. Cardenas.

We affirm the impugned Decision.

At the time the subject marriage was solemnized on June 24, 1970, the law governing marital relations was the New Civil Code. The law 4 provides that no marriage shall be solemnized without a marriage license first issued by a local civil registrar. Being one of the essential requisites of a valid marriage, absence of a license would render the marriage void ab initio. 5

Petitioner posits that the certification of the local civil registrar of due search and inability to find a record or entry to the effect that marriage license no. 3196182 was issued to the parties is not adequate to prove its non-issuance.

We hold otherwise. The presentation of such certification in court is sanctioned by Section 29, Rule 132 of the Rules of Court, viz.:

Sec. 29. Proof of lack of record. — A written statement signed by an officer having custody of an official record or by his deputy, that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.

The above Rule authorized the custodian of documents to certify that despite diligent search, a particular document does not exist in his office or that a particular entry of a specified tenor was not to be found in a register. As custodians of public documents, civil registrars are public officers charged with the

duty, inter alia, of maintaining a register book where they are required to enter all applications for marriage licenses, including the names of the applicants, the date the marriage license was issued and such other relevant data. 6

The certification of "due search and inability to find" issued by the civil registrar of Pasig enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license. Unaccompanied by any circumstance of suspicion and pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of "due search and inability to find" sufficiently proved that his office did not issue marriage license no. 3196182 to the contracting parties.

The fact that private respondent Castro offered only her testimony in support of her petition is, in itself, not a ground to deny her petition. The failure to offer any other witness to corroborate her testimony is mainly due to the peculiar circumstances of the case. It will be remembered that the subject marriage was a civil ceremony performed by a judge of a city court. The subject marriage is one of those commonly known as a "secret marriage" — a legally non-existent phrase but ordinarily used to refer to a civil marriage celebrated without the knowledge of the relatives and/or friends of either or both of the contracting parties. The records show that the marriage between Castro and Cardenas was initially unknown to the parents of the former.

Surely, the fact that only private respondent Castro testified during the trial cannot be held against her. Her husband, Edwin F. Cardenas, was duly served with notice of the proceedings and a copy of the petition. Despite receipt thereof, he chose to ignore the same. For failure to answer, he was properly declared in default. Private respondent cannot be faulted for her husband's lack of interest to participate in the proceedings. There was absolutely no evidence on record to show that there was collusion between private respondent and her husband Cardenas.

It is noteworthy to mention that the finding of the appellate court that the marriage between the contracting parties is null and void for lack of a marriage license does not discount the fact that indeed, a spurious marriage license, purporting to be issued by the civil registrar of Pasig, may have been presented by Cardenas to the solemnizing officer.

In fine, we hold that, under the circumstances of the case, the documentary and testimonial evidence presented by private respondent Castro sufficiently established the absence of the subject marriage license.

IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible error committed by respondent appellate court.

SO ORDERED.

G.R. No. 142309               January 30, 2009

JUAN DELA RAMA and EUGENIA DELA RAMA, Petitioners, vs.OSCAR PAPA and AMEUERFINA PAPA, Respondents.

D E C I S I O N

Tinga, J.:

This petition allows us to reiterate some of the basic rules concerning the notarization of deeds of conveyance involving real property. Such rules are important because an improperly notarized document cannot be considered a public document and will not enjoy the presumption of its due execution and authenticity.

I.

Petitioner spouses Juan and Eugenia dela Rama were the registered owners of a parcel of land situated in Calamba, Laguna, covered by

Transfer Certificate of Title (TCT) No. 91166 issued by the Registry of Deeds of Laguna. The property was acquired for P96,000.00 by way of sale from Canlubang Sugar Estate (CSE), as evidenced by a notarized Absolute Deed of Sale dated 10 July 1980 executed by Juan dela Rama and CSE, as represented by Jesus de Veyra. Eugenia dela Rama also affixed her signature as proof of her marital consent.1

According to Juan dela Rama, he became a resident of the United States by 1984 and would acquire American citizenship by 1989.2 In 1992, petitioners through their representative, were reminded to pay the realty tax on the property, only to be informed by the assessor’s office that their title to the property had in fact been cancelled, and a new title, TCT No. 102128, issued in favor of respondents Oscar and Ameorfina Papa.3

Until 31 July 1985, Oscar Papa had been the Assistant Vice- President and Head of Marketing of the Laguna Estate Development Corporation (LEDC), a marketing arm of CSE and the entity through which the property had earlier been marketed and sold to petitioners. The property was transferred to and retitled in the name of the spouses Papa pursuant to a notarized Deed of Absolute Sale dated 29 March 1985, covering the subject property, and identifying petitioners as the vendors and respondents as the vendees. The 1985 deed of sale bears the signatures of petitioners and respondents, at least two witnesses (whose identities are not spelled out or otherwise ascertainable on the face of the document), and the notarial signature and seal of Atty. William Gumtang. The new title in the name of respondents was issued on 21 June 1985.

Articulating the primary claim that their signatures on the 1985 deed of sale were forged, petitioners filed a complaint with the Regional Trial Court of Calamba, Branch 92, for "Cancellation of Title Obtained Under Forged Deed of Sale."4 They prayed for the declaration of nullity of the 1985 deed of sale, the corresponding cancellation of TCT No. 102128 in the name of respondents and the issuance of a new one in their names. Respondents counterposed in their Answer with Compulsory Counterclaim:5 (1) that the 1985 deed of sale had been duly executed; (2) that laches had barred the complaint since they had obtained title and physical possession as far

back as 1985; (3) that they had every reason to believe that the person from whom they purchased the property was duly authorized to sell the same given that such person was in possession of the owner’s duplicate TCT; and (4) that their purchase of the property was in good faith and for value, thus even assuming that the forgery occurred, the action should be directed against those who perpetrated the fraud.

During pre-trial, the following factual matters were stipulated upon: (1) that Juan dela Rama was the registered owner of the property covered by TCT No. T-91166, which was subsequently cancelled; (2) that TCT No. 102128 was issued in the name of respondents after they acquired the same for P96,000.00; (3) that from 1974 to 1985 or thereabouts Oscar Papa was employed or connected with LEDC, holding the position of Head of Marketing; (4) that LEDC was a developer and marketing arm of CSE; and (5) that LEDC had developed the residential subdivision where the subject property is located.

Petitioner Juan dela Rama and respondent Oscar Papa both testified in court. Dela Rama claimed having religiously paid the property taxes since 1980. He denied that he or his wife executed the 1985 deed of sale or any other document that conveyed their interests or rights over the property. He even denied having met Papa before he testified in court in 1995. Dela Rama also explained that he had purchased the property in 1980 while a student at New York University, and that he had been a permanent resident of California since 1984, and a United States citizen since 1989.

Oscar Papa testified that he was connected with LEDC from 1974 to 1985, where he marketed residential, industrial and agricultural lots which belonged to the Canlubang Sugar Estates. He claimed not to recall who had offered to him to buy the subject property, and that he had never met Juan Dela Rama. He also admitted signing the deed of sale, such document being witnessed by two staff members of LEDC, but he did not see dela Rama sign the same document. Neither could he remember signing the deed of sale in front of the notary public who notarized the document.

Papa claimed that in real estate transactions, it was standard practice that the buyer first sign the document before the seller did so. He also claimed that it was likewise standard practice in the real estate industry that the buyer and seller did not necessarily have to meet face to face. Respondent further alleged that at the time of the transaction, "sales of real property was (sic) very bad with several owners trying to sell back their property even at a price less than the purchase price," as this came shortly after the assassination of Senator Benigno Aquino, Jr.

On 26 June 1986, the RTC promulgated a Decision6 annulling the deed of sale, cancelling respondents’ title and reinstating petitioners’ title to the subject property. The RTC said that the facts and evidence presented indicated "preponderating evidence that the plaintiffs’ signatures in the deed of sale x x x are not their signatures,"7 such conclusion being corroborated by the admission of Papa that he did not see petitioners sign the deed of sale. The RTC also disbelieved respondents’ contention that it was standard practice in real estate transactions for the buyer to first affix his signature before the seller; noting that "[i]t must be that before a buyer would part with his money, he will first see to it that the sellers [sic] signatures were already affixed and if possible, affixed in his presence."8

The RTC did not consider respondents as buyers in good faith, given their dubious assertion that it was typical that the buyer signs the deed of sale before the seller, as well as such circumstances like the failure of respondents to ever pay real estate taxes on the property and to assert possession or occupancy over the property. Accordingly, it held that the cancellation of respondents’ title was proper. In addition, the RTC discounted the claim of defendants that laches and estoppel had set in to bar the action, pointing out that under Section 47 of Pres. Decree No. 1529, "no title to registered land in derogation of the title of the registered owner shall be acquired by prescription or adverse possession," and that under Article 1410 of the Civil Code, "[t]he action of defense for the declaration of the inexistence of a contract does not prescribe."9

Respondents appealed to the Court of Appeals. On 7 September 1999, the appellate court rendered a Decision reversing the RTC and upholding the validity of the deed of sale.10

The Court of Appeals considered the pivotal issue as whether the signatures of the petitioners on the deed of sale were indeed forged, and ultimately concluded that there was no such evidence to support the finding of forgery. It was observed that the burden of proving the forgery fell upon the petitioners, yet they failed to present convincing evidence to establish the forgery. The only evidence presented to establish the forgery was the oral testimony of Juan dela Rama himself, which according to the Court of Appeals, was self-serving. The RTC was chided for not applying Section 22 of Rule 132 of the Rules of Evidence, which provided in clear terms how handwriting must be proved. It was pointed out that the Rule required that the handwriting of a person be proved "by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person."11

Moreover, the Court of Appeals cited that neither one of the dela Ramas was confronted with their signatures in the challenged deed of sale. Nor did they positively and unequivocally declare that the signatures were not theirs or that these were forged.

II.

Hence, this petition for review. Petitioners devote considerable effort in highlighting facts and admissions elicited from Oscar Papa himself to cast doubt on the validity of the deed of sale. Yet it would be impertinent on our part to immediately dwell on such evidentiary matters without first contending with the legal arguments cited by the Court of Appeals in dismissing the complaint. While this Court is generally not a trier of fact, there are recognized exceptions to that rule, such as when the findings of fact are conflicting, or when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion.12

The petition hinges on a factual question–whether the signatures of the petitioners as appearing on the deed of sale were forged. The Court of Appeals correctly observed that petitioners had the onus probandi to

establish such forgery. In concluding that petitioners failed to discharge such burden, the appellate court cited the rule upholding the presumption of regularity of a notarized document. Applying that rule, it is necessary that the forgery must be established not merely by preponderance of evidence, but by clear, positive and convincing evidence, and the Court of Appeals appears to have applied that more exacting standard.

However, petitioners point out that respondent Papa had admitted before the Court that he did not sign the deed of sale in front of the Notary Public. Based on the transcript of Papa’s testimony before the RTC,13 it is clear at least that the witness could not attest to the fact that he had signed the document in front of the Notary Public.

Atty. Lizares:

Do you recall Mr. Witness if you sign[ed] this document in front of a Notary Public?

[Papa]:

No[,] sir.

Atty. Lizares:

Do you know this Mr. William Gumtang?

Witness:

Yes

Atty. Lizares:

How do you know him Mr. Witness?

Witness:

Atty. Gumtang is one of the Notary Public of CSE.

Atty. Lizares:

He is one of the Notary Public of CSE?

Witness:

Yes[,] sir.

Atty. Lizares:

So you do not recall if you signed this in front of Atty. Gumt[a]ng?

Witness:

I do not recall.

The deed was purportedly notarized by Atty. William Gumtang, who was personally known to Papa as he was one of the notaries public of CSE.14 Had Atty. Gumtang testified that Papa had signed the deed of sale in his presence, Papa’s memory lapse would have had less relevance. Yet Atty. Gumtang was never called on as a witness for the defense, nor was any other step taken by the respondents to otherwise establish that Papa had signed the deed of sale in front of the notary public.

A.

Papa’s admissions, refreshing in their self-incriminatory candor, bear legal significance. With respect to deeds of sale or conveyance, what spells the difference between a public document and a private document is the acknowledgment in the former that the parties acknowledging the document appear before the notary public and specifically manifest under oath that they are the persons who executed it, and acknowledge that the same are their free act and deed. The Court, through Chief Justice Davide, had previously explained:

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 ___________.

"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 (Young vs. Wooden, 265 SW 24, 204 Ky. 694)." 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 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.

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.(Emphasis supplied)15

The presumptions that attach to notarized documents can be affirmed only so long as it is beyond dispute that the notarization was regular. We cannot ascribe that conclusion at bar to the deed of sale. Respondent failed to confirm before the RTC that he had actually appeared before the notary public, a bare minimum requirement under

Public Act No. 2103. Such defect will not ipso facto void the deed of sale. However, it eliminates the presumptions that are carried by notarized public documents and subject the deed of sale to a different level of scrutiny than that relied on by the Court of Appeals. This consequence is with precedent. In Tigno v. Sps. Aquino,16 where the public document in question had been notarized by a judge who had no authority to do so, the Court dispensed with the clear and convincing evidentiary standard normally attached to duly notarized documents, and instead applied preponderance of evidence as the measure to test the validity of that document.

It appears that respondents had previously laid stress on the claim that it is a common practice in real estate transactions that deeds of conveyance are signed on separate occasions by the vendor and the vendee, and not necessarily in the presence of the notary public who notarizes the document but they adduced nothing to support their claim but their mere say-so. Assuming arguendo that is indeed the common practice in the business, we quite frankly do not care. The clear requirements of law for a proper acknowledgment may not be dispensed with simply because generations of transactions have blithely ignored such requirements. If it is physically impossible for the vendor and the vendee to meet and sign the deed in the presence of one notary public, there is no impediment to having two or more different notaries ratifying the document for each party that respectively appears before them. This is the prudent practice adopted by professional law enterprises, and it is a correct measure in consonance with the law.

B.

There is another implication under our rules of evidence. Under Section 19, Rule 132 of the Rules of Court, "documents acknowledged before a notary public except for last wills and testaments" are deemed as public documents, and as such, under Section 23 of the same Rule, they are evidence of the fact which gave rise to its execution and as to its date.17 Excepting the other public documents enumerated in Section 19, all other writings are private, and before such private document is offered as authentic, 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.18 Accordingly, in order that the challenged deed of sale may be accepted by the Court as genuine, we must be satisfied by the evidence on record establishing that its genuineness was proved by anyone who saw the document executed or written, or by evidence of the genuineness or handwriting of the maker.

This shift in perspectives relieves petitioners of an extraordinary burden to prove with clear and convincing evidence that the deed of sale was forged, as well as any presumption that the said document is genuine as to its due execution. The question now is thus whether they were able to establish the fact of forgery through a preponderance of evidence.

III.

It is now upon this Court to ascertain whether the genuineness and due execution of the deed of sale have been duly proven, there being no presumption that it was. In doing so, we continue to recognize that it remains incumbent on the petitioners to prove their allegation that the deed of sale was forged even though that document no longer enjoys any significantly weighted presumption as to its validity since it cannot be considered as a public document. The properly applicable standard of preponderance of evidence necessitates that the court counterweigh the respective evidence submitted by the litigants to test whether the plaintiff’s claims are actionable. Accordingly, in this case if the evidence presented by the petitioners that the deed of sale is a forgery is greater or more convincing than that presented by the respondents, then favorable relief may be granted to petitioners.

The evidence-in-chief presented by petitioners to prove that the deed of sale was fraudulent consists of the testimony of two witnesses for the plaintiff – petitioner Juan dela Rama, and respondent Oscar Papa, who called as a hostile witness for the plaintiff.

A.

We begin with Juan dela Rama’s testimony. Petitioners assert that Juan dela Rama expressly denied in open court his signature on the

deed of sale, and such denial is made plain in the transcript of his testimony of 25 July 1995.

Atty. Lizares:

Mr. Witness I am showing to you the document mark[ed] as plaintiff[‘s] exhibit which is the Deed of [A]bsolute Sale which is also the Annex "C" of complaint purportedly executed on March 29, 1985 by Juan Eugenio dela Rama and Eugenia dela Rama in favor of Mr. Oscar Papa, did you execut[e] the document?

[dela Rama]:

I did not.

Court:

What exhibit is that.

Atty. Lizares:

Exhibit "1" your Honor is defendant marking the same document that is mark as exhibit "M" and "M-1" for the plaintiff this a common exhibit. This is a 2 pag[e] document. Did you execute the document?

Witness:

No [I] did not.

Atty. Fortun:

May I know the date?

Atty. Lizares:

March 29, 1985. Did you execute any document whatsoever M[r]. Witness disposing or transferring any interest or right over the property which was earlier evidence[d] by your TCT No. T-91166?

Witness:

No such document was ever executed by me or my wife.

x x x

[On cross examination]

Atty. Fortun:

You declare that when you [were] shown that contract, it Appears that between you and Mr. Papa you stated that was not your signature?

Witness:

Yes Ma’am.19

[On redirect]

Atty. Lizares: So you never executed any Deed of Absolute Sale on any document transferring your right or interest of the property covered by TCT No. T-91166.

Witness:

No sir.20

The Court of Appeals noted that his testimony was not corroborated, thus, "self-serving," and further castigated the trial court for failing to apply Section 22 of Rule 132, which establishes how the genuineness of handwriting must be proved. The provision reads:

SEC. 22. How genuineness of handwriting proved.—The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.

Petitioners argue that our ruling in Emas v. De Zuzuarregui and Aguilar21 is in point. Emas involved a plaintiff who sought annulment of title on the ground that his signature on the contract of mortgage on which the conveyance of the property was based had been forged. In explaining that the plaintiff’s testimony on the forgery of his signature sufficed to debunk the genuineness of the contract, we held:

The proof adduced before the trial court shows, we think, beyond any doubt, that the deed, original of Exhibit A, which purports to show a conveyance of the property in which purports to show a conveyance of the property in question from the plaintiff, Lucio Emas, to the defendant De Zuzuarregui, is a forgery, and that the fraud was consummated substantially in the manner above described. The plaintiff in this action (the real Lucio Emas) testified unequivocally that he had never taken any part in the creation of the deed in question, and his testimony, in our opinion, leaves no room to doubt that he was speaking the truth. As evidence of the crime of forgery, the plaintiff's attorney submitted in the trial court certified copies of the judgments entered in the Court of First Instance of Manila and afterwards in the Supreme Court in the criminal case convicting Ortega of the crime of estafa by falsification of a public document. These certified copies were admitted by the trial court as competent proof and the attorney for the defendants objected on the ground that said judgments are inadmissible in this civil action, being res inter alios acta. As an abstract point of law the assignment of error based on this exception is perhaps well taken; but we are of the opinion that, apart from said certified judgments, the record contains ample evidence to support the finding of the trial court that the original of the Exhibit A is a forged

document, and that the present plaintiff, Lucio Emas, was not a party thereto.22

Does Section 22 of Rule 132 accommodate the testimony of the very person whose signature is disputed as a means to establish the genuineness of handwriting? We believe that it does, and Emas remains a good law notwithstanding the subsequent enactment of the Rules of Court. After all, the owner of such disputed signature may fall within the category of "any witness who believes it to be the handwriting of such person because he has seen the person write… and has thus acquired knowledge of the handwriting of such person." In Alo v. Rocamora,23 plaintiff Alo presented in evidence a deed of sale establishing that he, and not the defendant, was the prior purchaser of the land in question. Alo himself testified as to the authenticity of the deed of sale. In discussing whether the genuineness of such document was proved, we cited the then Section 324 of the Code of Civil Procedure, which provides "any writing may be proved, either by anyone who saw the writing executed; or by evidence of the genuineness of the handwriting of the maker; or by a subscribing witness." The Court then pronounced:

As to the authenticity of Exhibit A, introduced by the plaintiff, it may be said that it was fully established by the testimony of the plaintiff himself and by that of the witness, Vicente Alquizola, who signed the same together with the gobernadorcillo and who testified under oath that he was present when the document was executed and signed by those whose names are subscribed thereto. x x x

Telesforo Alo and Vicente Alquizola witnessed the execution of the said instrument, the latter having been one of the accompanying witnesses of the local authority before whom it was executed. Consequently there is no doubt as to the authenticity of the said document, nor as to the truth of the contents thereof, nor is there anything in the record, or any legal reason, that would justify this court in holding that the said document was false.24

Section 324 of the Code of Civil Procedure is substantially similar to Section 22 of Rule 132, so our application of the former rule in Alo remains appropriate today. At the very least, Section 22 of Rule 132

does not exclude such testimony from consideration. It is in fact well-established in the law of evidence that the testimony of the very person whose signature is disputed is more than competent proof on the genuineness of such signature. According to Wigmore on Evidence, there even was once thought "that for proving the genuineness of a document the alleged writer was a preferred witness," though it is now believed that no such rule of preference exists.25 At the same time, there really is no rule that automatically discounts the testimony of the alleged writer as to the genuineness or spuriousness of his own signature. In enumerating the methods of authentication of a handwriting, Professor Herrera actually designates as the first method, the testimony of the purported writer:

I. Proof of the Genuineness of a handwriting

A. Methods of Authentication

1. The Testimony of the purported writer

Except to the extent that certain formalities of proof are required by the rules relating to attesting witnesses or rules requiring formal certification, and the like, various means are available for proving the authenticity of a document as a prerequisite to its admission in evidence. Under ordinary circumstances, it would seem that the testimony of the purported writer would be the most satisfactory authentication, where it is available.

While this is generally true, it is not necessarily so in all cases. There is no preferential rule requiring the testimony of the writer on the ground that it is the best evidence; the fact that the best available evidence is not used being significant only in so far as it affects the weight. Thus evidence of handwriting may be admissible even though the person whose writing it is claimed to be in available as a witness.

x x x

When the testimony of the writer is not available it may be said that the next best evidence in quality would be in the testimony of a

witness who had seen the writer sign his name or actually make the writing x x x (Citations omitted)26

We acknowledge the general premise that the testimony of the very person whose signature is put in question has probative value, whether such testimony is offered to affirm or dispute the genuineness of his signature. That testimony satisfies the requirements under Section 22 of Rule 132 on how handwriting must be proved. At the same time, the evidentiary weight of such testimony wholly depends on the strength of the particular witness’s testimony viewed in conjunction with the totality of the evidence at hand.

It may be possible, as the Court of Appeals did in this case, to discount the testimony of a plaintiff disavowing the authenticity of his purported signature as "self-serving," but such posture can only be warranted if the "self-serving" assertion is negated by other evidence or legal presumptions. If the challenged deed of sale were considered by us as a public document, then dela Rama’s mere testimonial disavowal of his signature would be insufficient to rebut the presumptive due execution of that writing. However, since we cannot consider the deed of sale as a public document owing to its improper acknowledgment, Dela Rama’s denial that the signature was his gains greater weight for evidentiary purposes.

B.

Counter-intuitively perhaps, the petitioners as plaintiffs called on Oscar Papa to testify in their behalf as a hostile witness. This he did on 25 July 1995. It was an impressive gambit on the part of counsel for the petitioners that produced spectacular results.

Papa testified for the petitioners that he did not sign the document in the presence of the dela Ramas.

Atty. Lizares:

But you do not (sic) meet the person. Who signed as Juan

Eugenio dela Rama?

[Papa]:

No I did not see him sign.

Atty. Lizares:

So you did not see him signing?

Witness:

Yes.

Atty. Lizares:

But you said you sign[ed] this document?

Witness:

Yes.

Atty. Lizares:

When you sign[ed] this document did Mr. dela Rama were [sic] the person who purportedly signed in his behalf?

Atty. Fortun:

Your Honor he had repeatedly answered that he signed it without seeing him.27

A contrary admission on Oscar Papa’s part would have allowed the Court cause to believe that the petitioners had consented to the sale.

As a witness for the petitioners, Oscar Papa admitted that he had not never met Juan dela Rama before and during the sale, and until 1995 or ten years after the sale.

Atty. Lizares:

Have you ever met Juan Eugenio dela Rama?

[Papa]:

No sir.

Atty. Lizares:

He is not the one Juan Eugenio dela Rama who testified a while ago?

Atty. Fortun:

Already answered your Honor witness cannot recall.

Court:

Sustain[ed].

Atty. Lizares:

At the time you acquire[d] the property supposedly from Mr. dela Rama you were the Head [of the] Marketing Department?

Witness:

Yes sir.

Atty. Lizares:

Who introduce[d] you to Mr. Juan Eugenio dela Rama?

Atty. Fortun:

Misleading your Honor.

Court:

Sustain[ed].

Atty. Lizares:

So you mean you never met the person who execute[d] this document?

Witness:

Yes sir.28

As a witness for the petitioners, Papa could not recall who exactly had offered the subject property to him.

Atty. Lizares:

Who offer[ed] you this property which is the subject matter of this case?

[Papa]:

I could not specifically recall who in particular offer[ed] the property, it could have been one of my staff, or brokers at the time because aside from my job I am handling several construction not only this subdivision, not only Ceres I, there is Ceres II and Ceres III and all the industrial lots.29

x x x

Atty. Lizares:

You don’t recall who offer[ed] this property?

Witness:

At this moment specifically I cannot recall.30

As a witness for the petitioners, Papa admitted he could not recall whether or not any of the dela Ramas had already signed the deed of sale when he signed the same:

Atty. Lizares:

When you signed the document was it already signed by the suppose[d] vendor?

[Papa]:

I could not really recall right now but the fact is at the time

for the buyer to sign it first and then give it [to] the seller

seller and then the seller signed it afterwards.31

x x x

Atty. Lizares:

And you also don’t recall whether the signature Juan Eugenio dela Rama was already in this document when you sign this document?

Witness:

I do not specifically recall now as I have said earlier the practice was for the buyer to sign first and then the seller signed afterwards.32

As a witness for the petitioners, Papa admitted he could not remember where and how he signed the deed of sale.

Atty. Lizares:

Now so who presented this document to you for your signature?

[Papa]:

My either (sic) my staff or agent who told me that such property is for sale.

Atty. Lizares:

When the staff or agent told you that the property is for sale what document did you ask from agent or staff?

Witness:

Deed of Absolute sale and I presume at the time whoever was selling it inform me that the title is available.

Atty. Lizares:

Now when you sign[ed] this document where did you [sign] it?

Witness:

I could have signed it in the office or in our house.

Atty. Lizares:

You don’t recall where?

Witness:

Yes I cannot recall.

Atty. Lizares:

When you signed it were you alone?

Witness:

I could not even recall where I signed it.

Atty. Lizares:

Or perhaps with your wife?

Atty. Fortun:

Already answered your Honor he does not know.33

Had counsel for petitioners been content with relying singly on dela Rama’s testimony, there would have been a good chance that the complaint would not have survived. His move to call in Papa as a hostile witness allowed the above-cited testimony to form part of the evidence for the plaintiffs. The trial court correctly appreciated Papa’s testimony on 25 July 1995 (as distinguished from his subsequent testimony as a witness for the defense) as part of the evidence for the petitioners.34

In addition, another corroborative piece of evidence of the petitioners, as found by the trial court, lay in the fact that the dela Ramas had paid real estate taxes on the property until about 1993,35 or eight (8) years after the purported sale. Any reasonable person who had sold his property would not undertake the unnecessary burden of continuing to pay real property taxes on the same.

That piece in evidence should be taken into account together with petitioners’ presentation of Papa’s clear-cut and unrebutted testimony of as well as the evasive and ambivalent testimony of Papa. The totality of the evidence for the petitioners established a prima facie case that the deed of sale was not genuine. Even as the burden of proof may have initially lain with petitioners in establishing the forgery of what is a private document, their evidence was sufficient to shift the burden of evidence to respondents to establish the authenticity and due execution of said private document, especially as it is they who rely on the same in their defense.

III.

There are a myriad of ways respondents could have swayed the case then in their behalf after the burden of evidence had shifted to them.

Most pertinently, they could have presented the two persons whom Oscar Papa had identified as witnesses to the deed of sale, Mrs. Galeos and Mrs. Reyes, as well as Atty. Gumtang, to whom the deed was referred to for notarization. All three persons were personally known to Papa. Galeos and Reyes were, according to Papa, "staff of LEDC…who finalize[d] the document,"36 while Atty. Gumtang was one of the notaries public of CSE.37 Yet none of them testified in respondents’ behalf.

Respondents had initially manifested to the trial court that they were to present Gales and Reyes as witnesses in their behalf,38 yet only Papa ultimately testified for the defense. Assuming that the deed of sale was prepared, signed and notarized according to Papa’s version of events, any of these three witnesses could have easily bolstered the evidence in favor of the genuineness of the deed since Papa himself attested to their personal knowledge of these events. That they were not presented by Papa in his behalf speaks poorly of the veracity of his tale.1awph!1.zw+

When Papa did testify in behalf of the defense on 26 March 1996, his counsel adopted in full his earlier 25 July 1995 testimony as a hostile witness.39 That earlier testimony unfortunately was quite incriminatory. To make matters worse, his own testimony in his defense poked even more holes to his version of events. On cross-examination, he made it clear that he had no particular interest in meeting the petitioners for the purposes of negotiating or consummating the sale.

Atty. Lizares:

In your previous testimony Mr. Witness you testified that you never met Mr. Dela Rama do you confirm that?

[Papa]:

Yes sir.

Atty. Lizares:

And you never had a chance to speak with him?

Witness:

Yes sir.

Atty. Lizares:

And neither his wife?

Witness:

Yes sir.

Atty. Lizares:

Did you ever ha[ve] a chance to ask the broker or the person facilitating this whoever he was that you want to meet Mr. dela Rama?

Atty. Fortun:

Objection your Honor. Misleading.

Atty. Lizares:

No I’m just asking whether he had a chance to ask.

Court:

Reform your question.

Atty. Lizares:

Did you ever make a request in connection with this Transaction to meet with Mr. dela Rama?

Witness:

I cannot answer because I cannot recall.40

Most incredibly, Papa revealed he could not even remember to whom he tendered the purchase price of P96,000.00.

Atty. Lizares:

Mr. Witness, you or do you recall to whom did you made paid (sic) of the P96,000.00 that you said you paid to whoever who effected or facilitate[d] the sale?

[Papa]:

Unfortunately I cannot recall at this time because it was on 1985 and this is not the only transaction I am handling at that time being in sales I am also handling the same of company’s commercial lots, also handling the industrial lots the golf shares, I’ve been meeting a lot of people, I could not really recall how this particular transaction happen.

Atty. Lizares:

So you do not remember to whom you pay the money?

Witness:

Yes sir.

Atty. Lizares:

Do you remember if there is only one or two or three person[s] who arrange[d] with you for the sale of the property?

Witness:

I cannot recall but as I am trying to recall the numerous transaction handled at that time, normally with this kind of

transaction it will involv[e] some person, or some broker or even some agent.

Atty. Lizares:

But for this particular transaction you can tell exactly how many?

Witness:

No sir.41

In the context of trying to establish the authenticity and due execution of the deed of sale, Papa’s testimony proves woefully insufficient. It must be remembered that the transaction was personal to Papa, and he was not conducting in behalf of his employers. It was his own money, and not the company’s, that he was tendering. Thus, it is highly incredulous that Papa could not recall even the most basic details over his own personal transaction, in fact the only one he had during his stint at the LEDC, that involved a then princely sum of P96,000.00 of his own money.

Papa did testify in court that he had signed the deed of sale,42 and that assertion by itself has about as much weight as dela Rama’s claim that he did not. At the same time, that statement even if true does not conclusively prove the validity of the sale as it does not establish mutual consent as to the putative vendors and vendees to the sale. That point is especially salient since Papa admitted that he did not sign the document in the presence of the petitioners.

IV.

We are cognizant that the Court of Appeals approached its analysis of the case from a wholly different, and ultimately erroneous perspective. We are unable to utilize its appreciation of the facts. The Court of Appeals was unable to advert to anything on record as to how the deed of sale was substantiated during trial by Papa. Respondents, before this Court, are likewise unable to offer any convincing argument tending to

verify the deed of sale that is independent of the now-debunked legal presumption that the document was duly executed.

The reversal of the Court of Appeals decision is clearly warranted. We do not discount the fact that the petitioners could have further bolstered their case either by presenting a handwriting expert, or Amuerfina dela Rama as a witness. Still, their failure to do so is not fatal as the document in question is a private document, one which carries no presumption as to its authenticity and due execution. All told, the findings and conclusions of the trial court are correct and credible, compared to those of the Court of Appeals hence, reinstatement of the lower court’s decision is in order.

At the same time, we wish to impart a few more observations.

Given that the deed of sale has been proven as false, is there still any basis for which the respondents can retain title to their property? We observe that at the respective levels of the trial court and the Court of Appeals, respondents had argued that they should be considered as purchasers in good faith, especially since the complaint had adverted to "certain unscrupulous persons illegally representing themselves to be the plaintiffs" and "illicitly forging plaintiff’s signatures sold to herein defendants."43 We are unable to agree. By the very version of facts submitted by the respondents, there are enough circumstances to discount good faith on their part. Papa never bothered to communicate directly with the petitioners to ascertain whether the persons claiming to be their representatives – persons Papa could not even identify – were indeed authorized by the petitioners. Papa’s inability to remember to whom he tendered payment for the property likewise reveals utter apathy on his part as to the circumstances of the sale.

In Abad v. Guimba,44 we ruled that a party was not an innocent mortgagee in good faith because he neglected to check if the person he was dealing with had any authority to mortgage the property. The rules on ascertaining mortgagee in good faith are the same as those for purchasers in good faith. Without directly communicating with the petitioners, how could have Papa been certain that the persons apparently unknown to him were indeed duly authorized by the petitioners to sell the property.

The following observation of the trial court is also pertinent in this regard:

The defendants said that it is the practice in real estate transaction for the buyer to first affixed his signature and then the seller. This asseverations cannot be accepted as ordinary. It must be that before a buyer would part with his money, he will first see to it that the sellers signatures were already affixed and if possible, affixed in his presence. Intriguing also is the failure of the defendants to assert their right of ownership over the land by actually entering and occupying the premises and their failure at any moment the real estate taxes since 1985 when they allegedly purchased the property. xxx45

Finally, the Court of Appeals had observed that upon close comparison of the signatures on the questioned deed of sale and that earlier executed between the petitioners and CSE and in petitioners’ passport, the challenged signatures appeared "very similar with each other." We have examined the signatures in the two deeds of sale, and in fact noticed distinct differences, and varying writing styles. The signatures of the petitioners on the 1980 deed of sale are smooth and smaller than their purported signatures on the 1985 deed of sale. Moreover, the signature of Juan dela Rama in the deed of sale appears hesitant and non-fluid. The signature "Eugenia dela Rama" on the two deeds betray their very distinctive angles or slants.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 7 September 1999 and the Resolution dated 1 March 2000 in CA G.R. CV No. 53914 are REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Calamba, Branch 92 dated 26 June 1996 is REINSTATED. Costs against private respondents.