On real contracts at the lawyer’s doorstep
The case of Tigno v. Spouses Aquino involved the admissibility in evidence of an improperly notarized deed of sale.
Here, Spouses Estafino and Florentina Aquino filed a complaint seeking to enforce the sale of a fishpond, which was not previously registered under the Land Registration Act or the Spanish Mortgage Law, but was covered by that deed of sale.
Thereafter, the Aquinos and the seller, Isidro Bustria, entered into a compromise agreement, in which the latter recognized the validity of the sale, but was entitled to the right to repurchase the fishpond after the lapse of a seven-year period. The trial court where the complaint was filed approved this compromise agreement.
Bustria died and was substituted by his daughter, Zenaida Tigno, who sought to repurchase the fishpond. The Aquinos countered, among others, that Bustria had sold to them his right to repurchase the same in another deed of sale. The instrumental witnesses and the former judge who notarized this deed of sale testified as to its execution, but which was not admitted by the trial court in evidence.
In affirming the trial court’s decision, the Supreme Court held that this deed was substantially defective in that it was notarized by one who had no authority to do so. To be sure, the former judge was then sitting as a municipal court judge when he notarized the deed of sale.
This contravenes jurisprudence that municipal court judges may only notarize documents in the pursuit of their official duties. Moreover, a notary public ex officio should not compete with private law practitioners or regular notaries public in notarizing documents involving private transactions.
Instead, notaries public ex officio may only function as such in the absence of any lawyer or regular notary public in the municipality or circuit.
Consequently, the Supreme Court deemed this deed of sale as not having been notarized at all. Unlike public instruments, which have been converted as such through notarization, this deed does not enjoy the presumption of regularity and is subject to the requirement of proof for private documents, which the Aquinos have failed to comply with.
Nevertheless, the defective notarization of a document does not invalidate the transaction contained therein, as held by the Supreme Court in Diampoc v. Buenaventura.
In this case, Spouses Diampoc sought the annulment of a deed of sale over their land, supposedly executed in favor of Jessie Buenaventura. The Diampocs alleged Buenaventura had asked to borrow the owner’s copy of the title to this land to be used as security for a loan she had wished to secure. The Diampocs agreed, provided that Buenaventura should not sell the land. Subsequently, however, they found that Buenaventura had effectively become the owner of a portion thereof by virtue of a supposed deed of sale in her favor.
The lower courts ruled in favor of Buenaventura, considering that the deed of sale enjoyed the presumption of regularity of notarized documents. This presumption could only be overturned by clear and convincing evidence, which burden the Diampocs failed to discharge.
In their appeal before the Supreme Court, the Diampocs have argued that this presumption does not apply to the instant deed of sale since it has not been signed before a notary public, and was notarized in their absence. Moreover, these defects supposedly invalidate the sale transaction.
In affirming the lower courts’ decisions, the Supreme Court held that the absence of notarization of a deed of sale merely reduces the evidentiary value of a document to that of a private document, which requires proof of its due execution and authenticity to be admissible as evidence. To be sure, when there is a defect in the notarization of a document, the clear and convincing evidentiary standard normally attached to public documents is dispensed with, and the measure to test its validity is preponderant evidence.
The necessity of a public document, which as in this case, is a contract that transmits or extinguishes real rights over immovable property, is only for convenience, and not for its validity or enforceability. Thus, while not notarized or otherwise contained in a public instrument or reduced to formal writing, a sale of real property is nevertheless valid and binding among the transacting parties.
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