Republic of the Philippines  Supreme Court  Manila      EN BANC    A.M. No. 02-8-13-SC 2004 Rules on Notarial Practice         RESOLUTIONActing on the compliance dated 05 July 2004 and on the proposed Rules on Notarial Practice of 2004 submitted by the Sub-Committee for the Study, Drafting and Formulation of the Rules Governing the Appointment of Notaries Public and the Performance and Exercise of Their Official Functions, of the Committees on Revision of the Rules of Court and on Legal Education and Bar Matters, the Court Resolved to APPROVE the proposed Rules on Notarial Practice of 2004, with modifications, thus: chanroblesvirtuallawlibrary

2004 RULES ON NOTARIAL PRACTICERULE I IMPLEMENTATIONSECTION 1. Title. - These Rules shall be known as the 2004 Rules on Notarial Practice.SEC. 2. Purposes. - These Rules shall be applied and construed to advance the following purposes: chanroblesvirtuallawlibrary

(a) to promote, serve, and protect public interest; chan robles virtual law library (b) to simplify, clarify, and modernize the rules governing notaries public; and (c) to foster ethical conduct among notaries public. chan robles virtual law library

SEC. 3. Interpretation. - Unless the context of these Rules otherwise indicates, words in the singular include the plural, and words in the plural include the singular.RULE II DEFINITIONSSECTION 1. Acknowledgment. - “Acknowledgment” refers to an act in which an individual on a single occasion: chanroblesvirtuallawlibrary

(a)  appears in person before the notary public and presents an integrally complete instrument or document; (b)  is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and - (c)  represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity.SEC. 2. Affirmation or Oath. - The term “Affirmation” or “Oath” refers to an act in which an individual on a single occasion: chan robles virtual law library

(a)  appears in person before the notary public; chan robles virtual law library (b)  is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and chan

THIRD DIVISION

A.C. No. 7350 : February 18, 2013

PATROCINIO V. AGBULOS, Complainant, v. ATTY. ROSELLER A. VIRAY, Respondent.

D E C I S I O N

PERALTA, J.:

The case stemmed from a Complaint1 filed before the Office of the Bar Confidant (OBC) by complainant Mrs. Patrocinio V. Agbulos against respondent Atty. Roseller A. Viray of Asingan, Pangasinan, for allegedly notarizing a document denominated as Affidavit of Non-Tenancy2 in violation of the Notarial Law. The said affidavit was supposedly executed by complainant, but the latter denies said execution and claims that the signature and the community tax certificate (CTC) she allegedly presented are not hers. She further claims that the CTC belongs to a certain Christian Anton. 3 Complainant added that she did not personally appear before respondent for the notarization of the document. She, likewise, states that respondent's client, Rolando Dollente (Dollente), benefited from the said falsified affidavit as it contributed to the illegal transfer of a property registered in her name to that of Dollente.4?r?l1

In his Comment,5 respondent admitted having prepared and notarized the document in question at the request of his client Dollente, who assured him that it was personally signed by complainant and that the CTC appearing therein is owned by her.6 He, thus, claims good faith in notarizing the subject document.

In a Resolution7 dated April 16, 2007, the OBC referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation or decision.

After the mandatory conference and hearing, the parties submitted their respective Position Papers.8Complainant insists that she was deprived of her property because of the illegal notarization of the subject document.9 Respondent, on the other hand, admits having notarized the document in question and asks for apology and forgiveness from complainant as a result of his indiscretion.10?r?l1

In his report, Commissioner Dennis A. B. Funa (Commissioner Funa) reported that respondent indeed notarized the subject document in the absence of the alleged affiant having been brought only to respondent by Dollente. It turned out later that the document was falsified and the CTC belonged to another person and not to complainant. He further observed that respondent did not attempt to refute the accusation against him; rather, he even apologized for the complained act.11 Commissioner Funa, thus, recommended that respondent be found guilty of violating the Code of

G.R. No. 114829 March 1, 1995

MAXIMINO GAMIDO Y BUENAVENTURA, Petitioner, v. NEW BILIBID PRISONS (NBP) OFFICIALS, Respondents.chanrobles virtual law library

DAVIDE, JR., J.:

In the Resolution of 7 September 1994, we required Atty. Icasiano M. dela Rea of No. 42 National Road corner Bruger Subdivision, Putatan, Muntinglupa, Metro Manila, to show cause why no disciplinary action should be taken against him for making it appear in thejurat of the petition in this case that the petitioner subscribed the verification and swore to before him, as notary public, on 19 April 1994, when in truth and in fact the petitioner did not. chanroblesvirtualawlibrarychanrobles virtual law library

In his Explanation of 23 December 1994 which was received by this Court on 25 January 1995, Atty. Icasiano M. dela Rea admitted having executed the  jurat without the presence of petitioner Gamido. He alleges:

Firstly, I must honestly admit that I notarized it not in his presence. I did it in the honest belief that since it is  jurat and not an acknowledgement, it would be alrights [sic] to do so considering that prior to April 19, 1994 and thereafter, I know Mr. Gamido since I have been in and out of New Bilibid Prisons, not only because my office is here only across the Municipal Building of Muntinlupa, Metro Manila but because I handled a number of cases involving prisoners and guards of NBP as well as some of its personnels [sic]. That in fact, I attempted to have the document personally signed by him but considering that I have to strictly observe rules and regulations of the NBP, particularly on visit, I did not pursue anymore my intention to have it notarized before me. chanroblesvirtualawlibrarychanrobles virtual law library

Secondly, that in notarizing the document, I honestly feel and by heart and in good faith, that as a notary public and as a practicing lawyer, I could modestly contribute in the orderly administration of justice. The Gamido family use to come in the office and in fact hiring the legal services of the undersigned but I refused to handle since I am already pre-occupied in other cases of similar

importance. That on December 13, 1994 I receive a letter from Mr. Gamido, last paragraph of which is read as follows:

Sanay po Atty. ay maawa kayo sa akin na nagdudusa nang walang kasalanan. Alang alang po sa kaawa awa kong familiya, kailangan ang aking kalinga. Ang tulong ninyo ang siyang daan upang ako ay makaalis sa pagpapahirap nang mga taong walang puso at kaluluwa, walang awa sa kapwa, at sa sambayanang Pilipino.

Then he apologizes to the Court and assures it that henceforth he would be more careful and circumspect:

That I am praying for an apology to the Hon. Supreme Court if what I did was wrong and the Hon. Supreme Court is assured that perhaps what transpired was a wrong judgment or honest mistake. That the Hon. Chairman and its Hon. Members are assured that when I signed the petition not in Gamido's presence it is never intended to do a wrong, to commit illegal or criminal acts but merely in the honest and sincere belief that it is valid and legal. The Hon. Supreme Court is assured that it is never intended for malice or for money. chanroblesvirtualawlibrarychanrobles virtual law library

This Hon. Chairman and its Hon. Members are further assured that from hereon, I am more careful and circumspect in the exercise of this noble and grand profession and that no amount or consideration will sway or change this conviction. This is my life. This is the life of my family.

Atty. dela Rea's explanation is unsatisfactory; however, his spontaneous voluntary admission may be considered in mitigation of his liability. chanroblesvirtualawlibrarychanrobles virtual law library

As a notary public for a long time, as evidenced by the fact that his questioned  jurat  is indicated to have been entered in Book 45 of his notarial register, he should know the similarities and differences between a  jurat and an acknowledgement.chanroblesvirtualawlibrarychanrobles virtual law library

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 (Theobald vs. Chicago Ry. Co., 75 Ill. App. 208). 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)." (LORENZO M. TAÑADA and FRANCISCO A. RODRIGO, Modern Legal Forms, vol. I, sixth ed., 1985 printing, 31). The  jurat  in the petition in the case also begins with the words "subscribed and sworn to me." chanrobles virtual law library

To subscribe literally means to write underneath, as one's name; to sign at the end of a document (Black's Law Dictionary, Fifth ed., 1279). To swear means to put on oath; to declare on oath the truth of a pleading, etc. (Id., 1298). 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.chanroblesvirtualawlibrarychanrobles virtual law library

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

(a) The acknowledgement shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. (See Lorenzo M. Tañada and Francisco A. Rodrigo, Modern Philippine Legal Forms, vol. II, 1964 Fifth ed., 735).

It is obvious that the party acknowledging must likewise appear before the notary public or any other person authorized to take acknowledgments of instruments or documents. chanroblesvirtualawlibrarychanrobles virtual law library

The claim or belief of Atty. dela Rea that the presence of petitioner Gamido was not necessary for the  jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnity of an oath in a  jurat. Notaries public and others authorized by law to administer oaths or

to take acknowledgments should not take for granted the solemn duties appertaining to their offices. Such duties are dictated by public policy and are impressed with public interest. chanroblesvirtualawlibrarychanrobles virtual law library

His prior acquaintance and friendship with petitioner Gamido provides no excuse for non-compliance with his duty. If Atty. dela Rea were faithful to his duty as a notary public and if he wanted to accommodate a friend who was inside a prison, he could have gone to the latter's cell since he openly admitted that he has "been in and out of New Bilibid Prisons, not only because [his] office is here only across the Municipal Building of Muntinlupa, Metro Manila but because [he] handled a number of cases involving prisoners and guards of NBP as well as some of its personnels [sic]."chanrobles virtual law library

Administratively, as a lawyer commissioned as a notary public, Atty. Icasiano M. dela Rea committed grave misconduct when he agreed to prepare the  jurat  in the petition in this case in the absence of petitioner Gamido, thereby making it appear that the latter personally signed the certification of the petition and took his oath before him when in truth and in fact the said petitioner did not. chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, for grave misconduct, ATTY. ICASIANO I. DELA REA is hereby FINED in the sum of FIVE THOUSAND PESOS (P5,000.00), without prejudice to criminal prosecution as may be warranted under the circumstances. He is WARNED that the commission of the same or similar acts in the future shall be dealt with more severely.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

EN BANC 

[A.C. No. 6655 : October 11, 2011] 

PACITA CAALIM-VERZONILLA, COMPLAINANT, VS. ATTY. VICTORIANO G. PASCUA, RESPONDENT.

D E C I S I O N 

VILLARAMA, JR., J.:

Before the Court is the verified affidavit-complaint[1] of Pacita Caalim-Verzonilla seeking the disbarment of respondent Atty. Victoriano G. Pascua for allegedly falsifying a public document and evading the payment of correct taxes through the use of falsified documents.

Complainant alleges that on September 15, 2001, respondent prepared and notarized two Deeds of Extra-Judicial Settlement of the Estate of Deceased Lope Caalim with Sale. The first deed[2] was for a consideration of P250,000 and appears to have been executed and signed by Lope's surviving spouse, Caridad Tabarrejos, and her children (complainant, Virginia Caalim-Inong and Marivinia Caalim) in favor of spouses Madki and Shirley Mipanga.  The second deed[3]was for a consideration of P1,000,000 and appears to have been executed by and for the benefit of the same parties as the first deed. The two deeds have identical registration numbers, page numbers and book numbers in the notarial portion.

Complainant avers that both deeds are spurious because all the heirs' signatures were falsified. She contends that her sister Marivinia does not know how to sign her name and was confined at the Cagayan Valley Medical Center, Tuguegarao City, at the time the deeds were allegedly signed by her, as shown by a certification[4]from said hospital.  The certification, dated February 6, 2004 and signed by Dr. Alice Anghad, Medical Officer IV, attested that Marivinia has been confined at the Psychiatry Ward of the Cagayan Valley Medical Center since May 3, 1999 after being diagnosed of "Substance Induced Psychosis" and "Schizophrenia, Undifferentiated Type."

Complainant further alleges that the two deeds were not presented to any of them and they came to know of their existence only recently. She further claims that the Community Tax Certificates[5](CTCs) in her name and in the names of her mother and her sister Marivinia were procured only by the vendee Shirley and not by them. Complainant submits the affidavit[6] executed by Edwin Gawayon, Barangay Treasurer of C-8, Claveria, Cagayan, on August 3, 2002, attesting that the CTCs were procured at the instance of Shirley and were paid without the complainant and her co-heirs personally appearing before him.  Gawayon stated that the signatures and thumbmarks appearing on the CTCs are not genuine and authentic because it can be seen with the naked eyes that the signatures are similar in all three CTCs.

Lastly, complainant alleges that the two deeds were used by respondent and Shirley to annul a previously simulated deed of sale[7] dated June 20, 1979

purportedly executed by Lope in favor of the spouses Madki and Shirley Mipanga. Said deed was likewise a complete nullity because at that time Shirley Mipanga was only sixteen years old and still single.

In his comment,[8] respondent admits having prepared and notarized the two disputed Deeds of Extra-Judicial Settlement of the Estate with Sale (subject deeds), but denies any irregularity in their execution.  He claims that the preparation and notarization of the subject deeds were made under the following circumstances:

In the morning of September 15, 2001, complainant, Caridad, Virginia and Shirley Mipanga went to his house and requested him to prepare a deed of sale of a residential lot located in Claveria, Cagayan. He was informed by the parties that the agreed purchase price is P1,000,000 and was presented the certificate of title to the property. Upon finding that the registered owner is "Lope Caalim, married to Caridad Tabarrejos" and knowing that Lope already died sometime in the 1980s, he asked for, and was given, the names and personal circumstances of Lope's surviving children. He asked where Marivinia was, but Caridad told him that Marivinia remained home as she was not feeling well.  As Caridad assured him that they will fetch Marivinia after the deed of conveyance is prepared, he proceeded to ask the parties to present their CTCs.  Caridad and Pacita, however, told him that they have not secured their CTCs while Virginia forgot to bring hers. So he instructed them to get CTCs from Claveria.

An hour later, Caridad and Shirley came back with the CTCs of Caridad, Virginia, complainant and Marivinia. After he finished typing the deed and the details of the CTCs, Caridad said that she will bring the deed with her to Claveria for her daughters to sign. He then told them that it was necessary for him to meet them all in one place for them to acknowledge the deed before him as notary public. It was agreed upon that they will all meet at the house of the Mipangas between 11:00 a.m. and 12:00 noon on that same day.

Respondent arrived at the Mipanga residence shortly before 12:00 noon. There he saw Shirley, Caridad, complainant, Pacita and Marivinia with two other persons whom he later learned were the instrumental witnesses to the execution of the document. Upon being informed that the parties have already affixed their signatures on the deed, he examined the document then inquired from the heirs if the signatures appearing therein were theirs and if they were truly selling the property for P1,000,000. The heirs answered in the affirmative, thereby ratifying and acknowledging the instrument and its contents as their own free and voluntary act and deed. Thus, he notarized the document and then gave the original and two carbon copies to Shirley while leaving two in his possession.

Respondent adds that Shirley thereafter asked him what steps were needed to effect registration of the deed and transfer of the title in her and her husband's name. He replied that all the unpaid land taxes should be paid including the capital gains tax, documentary stamp taxes and estate tax to the Bureau of Internal Revenue (BIR) which will then issue the necessary clearance for registration. When asked how much taxes are payable, he replied that it depends on the assessment of the BIR examiner which will be based on the zonal value or selling price stated in the deed of sale. He added that the estate taxes due, with interests and surcharges, would also have to be paid. Since the consideration for the sale is P1,000,000, the taxes payable was quite enormous.  Shirley asked him who between the vendor and the vendee should pay the taxes, and he replied that under the law, it is the obligation of the vendors to pay said taxes but it still depends upon the agreement of the parties. He asked if there was already an agreement on the matter, but the parties replied in the negative.

Shirley then told the vendors that they should shoulder the payment of taxes. Caridad and her co-vendors, however, refused and said that a big portion of the P1,000,000 paid to them was already used by them to pay and settle their other obligations. Shirley then offered to pay one-half of whatever amount the BIR will assess, but Caridad insisted that another document be prepared stating a reduced selling price of only P250,000 so that they need not contribute to the payment of taxes since Shirley was anyway already willing to pay one-half of the taxes based on the selling price stated in the first deed. This resulted in a heated discussion between the parties, which was, however, later resolved by an agreement to execute a second deed.  The prospect of preparing an additional deed, however, irritated respondent as it meant additional work for him.  Thus, respondent went home.

Later, the parties visited respondent at his house and pleaded with him to prepare the second deed with the reduced selling price. Moved by his humane and compassionate disposition, respondent gave in to the parties' plea.

In the presence of all the heirs, the vendees and the instrumental witnesses, respondent prepared and notarized the second deed providing for the lower consideration of only P250,000.  He used the same document number, page number and book number in the notarial portion as the first deed because according to him, the second deed was intended by the parties to supplant the first.

Respondent denies complainant's assertions that the two deeds are simulated and falsified, averring that as stated above, all the parties acknowledged the same before him.  Likewise, he and his clients, the spouses Madki and Shirley Mipanga, presented the subject deeds as exhibits

in Civil Case No. 2761-S also pending before the Regional Trial Court (RTC), Branch 12, of Sanchez Mira, Cagayan.

As to the allegation that Marivinia did not appear before him as she was allegedly under confinement at the Cagayan Valley Medical Center on September 15, 2001, respondent cites a medical certificate[9] stating that Marivinia was confined in said hospital from May 3, 1999 to August 10, 1999.  He also points out that Marivinia is one of the plaintiffs in Civil Case No. 2836-S pending before the RTC, Branch 12, Sanchez Mira, Cagayan, for the annulment of the subject deeds, and nothing in the complaint states that she is mentally or physically incapacitated.  Otherwise, her co-plaintiffs would have asked the appointment of a guardian for her.

By Resolution[10] dated August 10, 2005, this Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

In a Report and Recommendation[11] dated May 3, 2007, Commissioner Jose Roderick F. Fernando found respondent administratively liable on account of his indispensable participation in an act designed to defraud the government.  He recommended that respondent be suspended from the practice of law for three months and that his notarial commission, if still existing, be revoked and that respondent be prohibited from being commissioned as a notary public for two years.

According to Commissioner Fernando, respondent did not offer any tenable defense to justify his actions. As a notary, it was his responsibility to ensure that the solemnities of the act of notarization were followed. As a lawyer, it was likewise incumbent upon him that the document he drafted and subsequently notarized was neither unlawful nor fraudulent. Commissioner Fernando ruled that respondent failed on both counts since he drafted a document that reflected an untruthful consideration that served to reduce unlawfully the tax due to the government.  Then he completed the act by likewise notarizing and thus converting the document into a public document.

On June 26, 2007, the IBP Board of Governors adopted and approved Commissioner Fernando's report and recommendation but imposed a higher penalty on respondent.  Its Resolution No. XVII-2007-285 reads:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A;" and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent's violation of Notarial Law and for his participation to a transaction that effectively

defrauded the government, Atty. Victoriano G. Pascua is hereby SUSPENDED from the practice of law for two (2) years and SUSPENSION of his Notarial Commission for two (2) years with Warning that a similar violation in the future will be dealt with severely.[12]

The above resolution is well taken.

By respondent's own account of the circumstances surrounding the execution and notarization of the subject deeds of sale, there is a clear basis for disciplining him as a member of the bar and as notary public.

Respondent did not deny preparing and notarizing the subject deeds. He avers that the true consideration for the transaction is P1,000,000 as allegedly agreed upon by the parties when they appeared before him for the preparation of the first document as well as the notarization thereof. He then claimed to have been "moved by his humane and compassionate disposition" when he acceded to the parties' plea that he prepare and notarize the second deed with a lower consideration of P250,000 in order to reduce the corresponding tax liability. However, as noted by Commissioner Fernando, the two deeds were used by respondent and his client as evidence in a judicial proceeding (Civil Case No. 2671-S), which only meant that both documents still subsist and hence contrary to respondent's contention that the second deed reflecting a lower consideration was intended to  supersede the first deed.

As to the charge of falsification, the Court finds that the documents annexed to the present complaint are insufficient for us to conclude that the subject deeds were indeed falsified and absolutely simulated. We have previously ruled that a deed of sale that allegedly states a price lower than the true consideration is nonetheless binding between the parties and their successors in interest.[13]  Complainant, however, firmly maintains that she and her co-heirs had no participation whatsoever in the execution of the subject deeds. In any event, the issues of forgery, simulation and fraud raised by the complainant in this proceeding apparently are still to be resolved in the pending suit filed by the complainant and her co-heirs for annulment of the said documents (Civil Case No. 2836-S).

With his admission that he drafted and notarized another instrument that did not state the true consideration of the sale so as to reduce the capital gains and other taxes due on the transaction, respondent cannot escape liability for making an untruthful statement in a public document for an unlawful purpose.  As the second deed indicated an amount much lower than the actual price paid for the property sold, respondent abetted in depriving the Government of the right to collect the correct taxes due.  His act clearly

violated Rule 1.02, Canon 1 of the Code of Professional Responsibilitywhich reads:

CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.X x x x

Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

Not only did respondent assist the contracting parties in an activity aimed at defiance of the law, he likewise displayed lack of respect for and made a mockery of the solemnity of the oath in an Acknowledgment. By notarizing such illegal and fraudulent document, he is entitling it full faith and credit upon its face, which it obviously does not deserve considering its nature and purpose.

In Gonzales v. Ramos,[14] we elucidated on how important and sacrosanct the notarial act is:

By affixing his notarial seal on the instrument, the respondent converted the Deed of Absolute Sale, from a private document into a public document. Such act is no empty gesture. The principal function of a notary public is to authenticate documents. When a notary public certifies to the due execution and delivery of a document under his hand and seal, he gives the document the force of evidence. Indeed, one of the purposes of requiring documents to be acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of documents, is to authorize such documents to be given without further proof of their execution and delivery. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgement executed before a notary public and appended to a private instrument. Hence, a notary public must discharge his powers and duties, which are impressed with public interest, with accuracy and fidelity.[15]

Moreover, while respondent's duty as a notary public is principally to ascertain the identity of the affiant and the voluntariness of the declaration, it is nevertheless incumbent upon him to guard against any illegal or immoral arrangement or at least refrain from being a party to its consummation.[16]Rule IV, Section 4 of the 2004 Rules on Notarial Practice in fact proscribes notaries public from performing any notarial act for transactions similar to the herein document of sale, to wit:

SEC. 4. Refusal to Notarize. - A notary public shall not perform any notarial act described in these Rules for any person requesting such an act even if he

tenders the appropriate fee specified by these Rules if:

(a) the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral;

x x x x

In this case, respondent proceeded to notarize the second deed despite knowledge of its illegal purpose.  His purported desire to accommodate the request of his client will not absolve respondent who, as a member of the legal profession, should have stood his ground and not yielded to the importunings of his clients.  Respondent should have been more prudent and remained steadfast in his solemn oath not to commit falsehood nor consent to the doing of any.[17]  As a lawyer, respondent is expected at all times to uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the trust and confidence reposed by the public in the integrity of the legal profession.[18]

Respondent also failed to comply with Section 2, Rule VI of the 2004 Rules on Notarial Practice when he gave the second document the same document number, page number and book number as the first:

SEC. 2. Entries in the Notarial Register. - x x x

x x x x

(e) The notary public shall give to each instrument or document executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument or document the page/s of his register on which the same is recorded. No blank line shall be left between entries.

X x x x

Respondent admitted having given the second deed the same document number, page number and book number as in the first deed, reasoning that the second deed was intended to supplant and cancel the first deed. He therefore knowingly violated the above rule, in furtherance of his client's intention of concealing the actual purchase price so as to avoid paying the taxes rightly due to the Government.

Even assuming that the second deed was really intended to reflect the true agreement of the parties and hence superseding the first deed they had executed, respondent remains liable under the afore-cited Section 2(e) which requires that each instrument or document, executed, sworn to, or

acknowledged before the notary public shall be given a number corresponding to the one in his register.  Said rule is not concerned with the validity or efficacy of the document or instrument recorded but merely to ensure the accuracy and integrity of the entries in the notarial register.

A lawyer may be suspended or disbarred for any misconduct showing any fault or deficiency in his moral character, honesty, probity or good demeanor.[19]  Section 27, Rule 138 of the Revised Rules of Court provides:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds herefore. - A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, of for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience appearing as an attorney for a party to a case without authority so to do.  The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

X x x x

In Gonzales, the notary public who notarized the document despite the non-appearance of one of the signatories was meted the penalties of revocation of his notarial commission and disqualification from re-appointment for two years.  The notary in Gonzales was likewise suspended from the practice of law for one year.  Said penalty was in accord with the cases of Bon v. Ziga,[20]Serzo v. Flores,[21]Zaballero v. Montalvan[22] and Tabas v. Mangibin.[23]  The Court found that by notarizing the questioned deed, the respondent in Gonzales engaged in unlawful, dishonest, immoral or deceitful conduct.[24]

In the instant case, we hold that respondent should similarly be meted the penalty of suspension and revocation of his notarial commission for having violated the 2004 Rules on Notarial Practice.  In line withcurrent jurisprudence, and as recommended by the IBP Board of Governors, the revocation of his notarial commission and disqualification from re-appointment as notary public for two years is in order.

With respect, however, to his suspension from the practice of law, we hold that the one-year suspension imposed in Gonzales and the other cases is not applicable considering that respondent not only failed to faithfully comply with the rules on notarial practice, he also violated his oath when he prepared and notarized the second deed for the purpose of avoiding the payment of correct amount of taxes, thus abetting an activity aimed at defiance of the law. Under these circumstances, we find the two-year suspension recommended by the IBP Board of Governors as proper and

commensurate to the infraction committed by respondent.

WHEREFORE, respondent ATTY. VICTORIANO G. PASCUA is hereby SUSPENDED from the practice of law for a period of two (2) years. In addition, his present notarial commission, if any, is hereby REVOKED, and he is DISQUALIFIED from reappointment as a notary public for a period of two (2) years. He is further WARNED that any similar act or infraction in the future shall be dealt with more severely.

Let copies of this Decision be furnished all the courts of the land through the Office of the Court Administrator, as well as the Integrated Bar of the Philippines, and the Office of the Bar Confidant, and recorded in the personal records of the respondent.

Corona, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Abad, Mendoza, Sereno, Reyes, and Perlas-Bernabe, JJ., concur.Bersamin and Perez, JJ., on official leave.Del Castillo,  J., on leave.

Endnotes:

SECOND DIVISION

[A.C. NO. 5377 : June 15, 2006]

VICTOR LINGAN, Complainant, v. ATTYS. ROMEO CALUBAQUIB and JIMMY P. BALIGA, Respondents.

R E S O L U T I O N

CORONA, J.:

This is a complaint for disbarment1 filed by Victor Lingan against Attys. Romeo Calubaquib and Jimmy Baliga on November 16, 2000. Complainant alleged that respondents, both notaries public, falsified certain public documents.

The case has its roots in a complaint for annulment of title with damages2 filed by Isaac Villegas against complainant with the Regional Trial Court of Tuguegarao, Cagayan, docketed as Civil Case No. 5036. Respondent Calubaquib signed the verification and certification of non-forum shopping3 of the complaint as notary public and entered the same as Doc. No. 182; Page No. 38; Book No. CLXXII; Series of 1996. Complainant alleges that this document was

falsified because according to the records of the National Archives, the document entered as Doc. No. 182; Page 38; Book No. CLXXII; Series of 1996 in respondent Calubaquib's notarial register was an affidavit of one Daniel Malayao.4

The trial court decided Civil Case No. 5036 in favor of complainant5 and, as a result, the plaintiff there, through respondent Calubaquib, appealed it to the Court of Appeals, where it was docketed as CA-G.R. CV No. 55837.

On file with the records of this case is a special power of attorney6 dated September 10, 1996 executed by Isaac Villegas appointing respondent Calubaquib as his attorney-in-fact to "enter into a compromise agreement under such terms and conditions acceptable to him" which was notarized by respondent Baliga and entered as Doc. No. 548, Page No. 110; Book No. VIII; Series of 1996.7 Complainant alleged that this special power of attorney was also falsified because, according to respondent Baliga's notarial register, Doc. No. 548; Page No. 110; Book No. VIII; Series of 1996 pertains to an affidavit of loss of one Pedro Telan,8 dated August 26, 1996.

In addition, on January 2, 1995, respondent Baliga filed a petition for reappointment as notary public for and in Tuguegarao, Cagayan, which was notarized by respondent Calubaquib and entered in his notarial register as Doc. No. 31, Page No. 08, Book No. CXXX, Series of 1995. However, Notarial Register Book No. CXXX was for the year 1996 and entered there as Doc. No. 31, Page No. 08 was a cancellation of real estate mortgage dated January 11, 1996.

In his answer,9 respondent Baliga admitted the incorrectness of the entries and simply attributed them to the inadvertence in good faith of his secretary to whom he had left the task of entering all his notarial documents.

Respondent Calubaquib's comment,10 however, contained a much lengthier account of the alleged events leading up to this case, the bulk of which was meant to cast complainant and his motives in a sinister light. In a nutshell, he made it appear that the reason for the complaint was that he (respondent) thwarted a fraudulent attempt by complainant to grab a parcel of land. He also stated that

complainant had filed a case for falsification of documents against him with the Ombudsman but it was dismissed.

In the end, however, he (like his co-respondent Baliga) admitted to the mistaken entries and also ascribed the same to his "legal assistants." Similarly, by way of defense, he pointed out that the Notarial Law "provides that only contracts need to have their copies included in the notarial records. It does not require affidavits, verifications or subscriptions of petitions which are mere allegations of facts to be entered in the Notarial Register, despite widespread practice to the contrary."

Upon receipt of respondents' comments, we referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

In the course of the proceedings before the IBP, complainant alleged that respondent Calubaquib, with the help of respondent Baliga and several other persons, was trying to deprive him (complainant) of a parcel of land he had bought from Isaac Villegas' mother-in-law. According to complainant, respondent impersonated Villegas, who was in hiding due to several civil and criminal cases pending against him, by forging his signature in all documents and pleadings related to the civil case filed against him (complainant). He pointed to the incorrect notarial entries as proof of this falsification.

He presented in evidence a motion for withdrawal11 filed in the Court of Appeals, apparently by Villegas, disavowing any involvement in the case filed by respondent Calubaquib.

To further buttress his allegations of falsification, complainant pointed out that respondent Calubaquib seemed unable to physically produce Villegas. For example, when the Ombudsman ordered him to produce Villegas, respondent Calubaquib merely presented an affidavit12 supposedly executed by Villegas and sworn to before a "highly regarded [Department of Justice] official."

In the IBP's report and recommendation,13 dated December 7, 2001, Commissioner Rebecca Villanueva-Maala found respondents "liable for inexcusable negligence" and recommended the revocation of the commission of respondents Calubaquib and Baliga as notaries public

for two years from receipt of the final decision. Commissioner Maala's report did not touch on complainant's allegations of forgery.

When the IBP resolved14 to adopt Commissioner Maala's report and recommendation, both complainant15 and respondent Baliga16 filed motions for reconsideration17 with this Court. Respondent Calubaquib opposed18 complainant's motion for reconsideration.

In his motion for reconsideration, complainant assailed the penalty recommended by the IBP as grossly inadequate. Reiterating his allegation of forgery, he attached documents bearing Villegas' allegedly forged signature as well as documents with his supposed real signature19 for comparison.

In his opposition/comment, respondent Calubaquib refuted complainant's scathing accusations of fraud and abuse of his public position, and prayed for the dismissal of the complaint. In his motion for reconsideration, respondent Baliga decried the penalty imposed as disproportionate to the infraction he had committed.

The respondents having admitted responsibility for the notarial entries, the question now is whether these were the product of a mere mistake or evidence of larger scheme to defraud complainant whose allegations, if true, are serious enough to merit the disbarment of both respondents.

The missing link, as it were, between the admitted infractions of respondents and the nefarious machinations alleged by complainant is whether or not the latter was able to prove that Villegas' signature on the documents notarized by respondents was in fact forged.

Forgery cannot be presumed. It must be proved by clear, positive and convincing evidence. Mere allegation thereof is not evidence.20 One who alleges forgery has the burden of proving the same.21 We find that complainant failed to discharge this burden.

Complainant alleged mainly that Villegas could not possibly have signed the documents in question because he was a fugitive from justice, with "several civil and criminal cases pending against him." Assuming this allegation to be true, it proved nothing. The mere fact that Villegas was a fugitive from justice did not preclude the possibility that he might have secretly met with his lawyer for

purposes of filing a suit. It would have been different had complainant presented evidence that Villegas was, at the time the questioned documents were executed, definitely somewhere else. But the bare argument that Villegas' being a fugitive rendered it impossible for him to sign some documents was simply too nebulous to inspire belief.

As additional evidence, complainant presented, as attachments to his motion for reconsideration, a number of documents purportedly bearing Villegas' real signature, the latest of which was the motion to withdraw allegedly filed by Villegas himself. However, the veracity of the last of those documents was vigorously contested by an affidavit also purportedly filed by Villegas. The two documents, both notarized, effectively cancelled each other out, absent some other credible proof.

It is true that there were dissimilarities between the signatures purportedly belonging to Villegas and his genuine signature on the conforme of the general power of attorney22executed by his wife in favor of his mother-in-law. However, the fact of forgery cannot be presumed simply because there are dissimilarities between the standard and the questioned signatures.23 If complainant was so sure the signatures were fake, he should have submitted them for expert analysis to the National Bureau of Investigation, the Philippine National Police or some other handwriting expert. The records are bereft of any such analysis or even any attempt to have the signatures examined.

Furthermore, all the documents on which the contested signature appeared were notarized. Notarial documents carry the presumption of regularity. To contradict them, the evidence presented must be clear, convincing and more than merely preponderant.24Complainant's uncorroborated theory of an entire conspiracy of lawyers and government officials beholden to respondent Calubaquib did not constitute such evidence.

The forgery of Villegas' signature having remained unproven, we can only hold respondents liable for their omissions that have actually been proved.

In this respect, we find that the recommendations of IBP Commissioner Maala adopted by the IBP were supported by the evidence on record, particularly the documents themselves as well as the respondents' own admission.

In response, on the other hand, to respondents' feeble attempts to deflect the blame from themselves and onto their staff, we call their attention to Sections 245, 246 and 249(b) of the Notarial Law.25

Sections 245 and 246 of the Notarial Law provided:

SEC. 245. Notarial Register. ― Every notary public shall keep a register to be known as the notarial register, wherein record shall be made of all his official acts as notary; and he shall supply a certified copy of such record, or any part thereof, to any person applying for it and paying the legal fees therefore. (emphasis supplied)

x x x

SEC. 246. Matters to be entered therein. - The notary public shall enter in such register, in chronological order, the nature of each instrument executed, sworn to, or acknowledged before him, the person executing, swearing to, or acknowledging the instrument, the witnesses, if any, to the signature, the date of execution, oath, or acknowledgment of the instrument, the fees collected by him for his services as notary in connection therewith, and, when the instrument is a contract, he shall keep a correct copy thereof as part of his records, and shall likewise enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. The notary shall give to each instrument executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument the page or pages of his register on which the same is recorded. No blank line shall be left between entries.

x x x

In this connection, Section 249(b) stated:

SEC. 249. Grounds for revocation of commission. The following derelictions of duty on the part of a notary public shall, in the

discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission:

x x x

(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law.

x x x

From the language of the subsection, it is abundantly clear that the notary public ispersonally accountable for all entries in his notarial register. Respondents cannot be relieved of responsibility for the violation of the aforesaid sections by passing the buck to their secretaries, a reprehensible practice which to this day persists despite our open condemnation.26 Respondents, especially Calubaquib, a self-proclaimed "prominent legal practitioner," should have known better than to give us such a simple-minded excuse.

We likewise remind respondents that notarization is not an empty, meaningless or routinary act but one invested with substantive public interest, such that only those who are qualified or authorized to do so may act as notaries public. The protection of that interest necessarily requires that those not qualified or authorized to act must be prevented from inflicting themselves upon the public, the courts and the administrative offices in general.27

Notarization by a notary public converts a private document into a public one and makes it admissible in evidence without further proof of its authenticity.28 Notaries public must therefore observe utmost care with respect to the basic requirements of their duties.29

Being not only lawyers but also public officers, respondents should have been acutely aware of their responsibilities. Respondents' acts did not amount to mere simple and excusable negligence. Having failed to perform their sworn duty, respondents were squarely in violation of Rule 1.01 of Canon 1 of the Code of Professional Responsibility30and Section 27, Rule 138 of the Rules of Court which provides:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefore. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly and willfully appearing as an attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

WHEREFORE, in view of the foregoing, respondents Atty. Romeo I. Calubaquib and Atty. Jimmy P. Baliga are hereby found guilty of violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility and of their lawyer's oath. They are both orderedSUSPENDED from the practice of law for ONE YEAR effective immediately, with a warning that another infraction shall be dealt with more severely.

Their present commissions as notaries public, if any, are hereby REVOKED, withDISQUALIFICATION from reappointment as notaries public for a period of two years.

Let a copy of this Resolution be attached to the personal records of Atty. Romeo I. Calubaquib and Atty. Jimmy P. Baliga, and copies furnished the Integrated Bar of the Philippines, the Office of the Court Administrator and Office of the Bar Confidant for dissemination to all courts nationwide.

This Resolution is immediately executory.

SO ORDERED.

SECOND DIVISION

[G.R. NO. 129416 : November 25, 2004]

ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, Petitioners, v. 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.11A 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.39However, 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 cralawlibrary

(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.46In 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.