THIRD DIVISION
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VIRGILIO DYCOCO, herein represented by
his Attorneys-in-fact CRISTINO C. GRAFILO, JOSE C. GRAFILO and ADOLFO C.
GRAFILO,
and CRISTINO C. GRAFILO, JOSE C. GRAFILO
and ADOLFO C. GRAFILO for and in their own behalf, Petitioners, |
G.R.
No. 184843 Present: CARPIO MORALES, J., Chairperson, BRION, BERSAMIN, ABAD,* and VILLARAMA, JR., JJ. |
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ADELAIDA ORINA joined by her husband
GERMAN R. ORINA as represented by her Attorney-in-fact EVELYN M. SAGALONGOS
and for in the latter’s own behalf, |
Promulgated: July 30, 2010 |
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Respondents. |
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D E C I S I O N
CARPIO
MORALES, J.
On
petition for review on certiorari is the
Virgilio
Dycoco (Dycoco) is alleged to have executed on October 9, 1995 a “Real Estate
Mortgage with Special Power to Sell Mortgaged Property without Judicial
Proceedings” (REM) in favor of respondent Adelaida Orina (Adelaida), covering a
parcel of land located in Sta. Cruz, Manila and registered under Transfer
Certificate of Title (TCT) No. 105730 in Dycoco’s name. The REM was notarized on even date by Notary
Public Arwin Juco Sinaguinan.
By Adelaida’s claim, Dycoco was
indebted to her in the amount of P250,000.00, payable in six months, to
bear monthly interest rate of five percent (5%), to secure which Dycoco
executed the REM.
For
Dycoco’s alleged failure to pay his obligation, Adelaida extrajudicially
foreclosed the REM and as no redemption was made within the reglementary period,
Dycoco’s TCT was cancelled and, in its stead, TCT No. 243525 was issued in her
name.
Dycoco’s
attorneys-in-fact-brothers-in-law Cristino, Jose and Adolfo, all surnamed
Grafilo, who occupy the property covered by the REM as caretakers/tenants, did
not turn-over its possession to Adelaida, hence, she, joined by her husband
represented by her attorney-in-fact Evelyn Sagalongos (Evelyn), filed a
complaint for ejectment against them before the Metropolitan Trial Court (MeTC)
of Manila.
Upon
receiving notice of the complaint, Dycoco, represented by his attorneys-in-fact,
filed a complaint for annulment of the REM and transfer certificate of title
with damages, docketed as Civil Case No. 01100522, against Adelaida and her
husband German Orina represented by Evelyn before the Regional Trial Court (RTC)
of
Dycoco’s attorneys-in-fact claimed
that Dycoco’s signature on the REM was forged, to prove which they presented various
documents that Dycoco was working in the
Herein respondents Adelaida et al.,
maintaining the due execution of the REM, presented Evelyn who testified on a photocopy of the REM.
By Decision of
Plaintiff, [Dycoco], through the testimony of their (sic) lone witness as well as their (sic) documentary exhibits tried to show that it was not . . . Dycoco who mortgaged the said property. Cristino Grafilo even testified that their brother Miguel, admitted to having stole (sic) the title and have (sic) it mortgaged. Plaintiffs (sic), however, failed to establish that the mortgagor, (sic) defendant Adelaida Orina, knew it was not Virgilio Dycoco who mortgaged the same.[2] (underscoring supplied)
By the assailed Decision, the Court
of Appeals affirmed the trial court’s dismissal of Dycoco’s complaint, it
holding that albeit Dycoco’s questioned signature appearing on the REM and the documentary
evidence presented by his attorneys-in-fact bear “striking differences,” since
Dycoco was not presented on the witness stand to establish the genuineness, due
execution and contents of the documentary evidence, no probative value can be
ascribed thereto.
In
not crediting evidentiary weight on Dycoco’s
. . . [T]he existence,
genuineness, due execution and contents of Exhibit “I” have not been properly
established. Again, the identification made by plaintiff-appellant Cristino
Grafilo (sic) will not suffice since
he is not privy to its issuance and execution. The plaintiff-appellants (sic) should have presented a person
competent to testify to establish the genuineness and contents of Exhibit “I”
like an officer from the Bureau of Immigration. But the plaintiff-appellants (sic) failed to do so. Thus, this court
finds the stance of plaintiff-appellants (sic)
that Virgilio Dycoco was out of the country at the time of the execution of the
questioned deed unsupported.[3]
The
motion for reconsideration of Dycoco’s attorneys-in-fact having been denied by
Resolution of
A perusal of the REM which is, as
stated earlier, a merely photocopy, shows the incompleteness of the acknowledgment
portion. It reads:
Republic of the
City of
BEFORE ME, a Notary
Public for and in the City of
As the above-quoted acknowledgment shows,
the name of the person who personally appeared before the notary public is not
stated.
Documents acknowledged before a notary public,
except last wills and testaments, are public documents.[5] Since the subject REM was not properly
notarized, its public character does not hold.
Since
the REM is not a public document, it is subject to the requirement of proof for
private documents under Section 20, Rule 132, which provides:
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 it is claimed to
be. (underscoring supplied)
It
was thus incumbent upon Adelaida to prove that Dycoco’s signature is genuine. As stated earlier, a mere photocopy of the REM was presented. It is axiomatic that when the genuineness of
signatures on a document is sought to be proved or disproved through comparison
of standard signatures with the questioned signature, the original thereof must
be presented.[6] Why respondents did not present the original,
they did not explain. Why they did not present
Adelaida, who must have been present at the execution of the REM as her
purported signature appears thereon, or the notary public, or any of the
witnesses, neither did they explain. Sec.
5 of Rule 130 which reads:
SEC. 5. When original document is unavailable. — When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of the unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.
Upon the other hand, Dycoco’s
attorneys-in-fact presented his
Contrary to the appellate court’s stance,
there was no necessity to present Dycoco on the witness stand or to present the
one who made the entries on his
But
more important, one of the documents offered by Dycoco is a Special Power of
Attorney executed on
Section 2. An instrument or document
acknowledged and authenticated in a foreign country shall be considered
authentic if the acknowledgment and authentication are made in accordance with
the following requirements:
(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé d’affaires, consul, vice-consul, or consular agent of the United States, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.
(b) The person 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 under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, chargé d’affaires, consul, vice-consul, or consular agent of the United States, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine. (emphasis and underscoring supplied)
Evelyn insisted that Dycoco was
present during the signing of the REM on
ATTY. MERCADO:
Q: Madam Witness, when this document was prepared, were you present?
WITNESS:
A: Yes sir.
Q: Are you a witness in the execution of
this document?
A: Yes sir.
Q: On page 2 of this document, the (sic) appears a signature above the type-written name Adelaida Orina, will you please inform the Honorable Court whose signature is this?
Q: Why do you know that it is the signature of Adelaida Orina?
A: Because she is included there.
Q: What do you mean by “kasama po siya”?
A: There were four of us at the office of the Notary Public.
Q: When you said four of you, whao (sic) are they?
A: Adelaida, Virgilio, two other witness (sic) and me.
Q: You are not four, you are five?
A: Yes sir.[10] (underscoring supplied)
Evelyn’s
testimony not only contradicts the entries in Dycoco’s U.S. Passport, however, it
appearing therein that Dycoco visited the
WHEREFORE,
the petition is GRANTED. The Decision of the Court of Appeals dated
Let a NEW judgment be entered
declaring null and void the document entitled “Real Estate Mortgage with
Special Power to Sell Mortgaged Property without Judicial Proceedings”
purportedly signed by Virgilio Dycoco in favor of Adelaida Orina.
Let
a copy of this Decision be furnished the Register of Deeds of Manila for proper
disposition.
SO
ORDERED.
CONCHITA
CARPIO MORALES
Associate
Justice
WE CONCUR:
|
ARTURO D. BRION Associate Justice |
LUCAS P. BERSAMIN Associate Justice |
|
ROBERTO A. ABAD Associate Justice |
MARTIN S. VILLARAMA, JR. Associate Justice |
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, I certify that the conclusions in
the above decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
RENATO
C. CORONA
Chief Justice
* Designated
as Additional Member, per Special Order No. 843 (
[1] Penned by Associate Justice Bienvenido L. Reyes with the concurrence of Associate Justices Fernanda Lampas-Peralta and Apolinario D. Bruselas, Jr., rollo, pp. 57-69.
[2]
[3]
[4] Records, p. 25.
[5] Section 19, Rule 132, Rules of Court.
[6] Heirs of Severa P. Gregorio v. Court of Appeals, G.R. No. 117609, December 29, 1998, 300 SCRA 565.
[7] Rollo, p. 67.
[8] Records, p. 146.
[9] Otherwise known as An Act Providing
For The Acknowledgment And Authentication Of Instruments And Documents Without
The Philippine
[10] TSN,