• Notarization invested with substantive public interest

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    My sister used to own a parcel of land in Taguig City (Metro Manila). She has no heirs because she was single when she died. One year after her death, I found out that there was a man who tried to transfer in his name the certificate of title in the name of my sister covering her lot. The basis of the application or cancelation of title in his name is a deed of sale allegedly executed between him and my sister. I also discovered that the document was notarized by a lawyer one year after the death of my sister.

    Does the notary public have any liability for notarizing a deed of absolute sale even if the seller was already dead?
    Pol

    Dear Pol,
    The notary public may be made liable for notarizing a document without requiring the seller to personally appear before him. This is in consonance with Section 2(b) of Rule IV of the 2004 Rules on Notarial Practice, which requires that “a person shall not perform a notarial act if the person involved as signatory to the instrument or document –

    (1) is not in the notary’s presence personally at the time of the notarization; and

    (2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.”

    The Supreme Court in Agbulos vs Viray, A.C. No. 7350 (February 18, 2013) had expounded the roles of the notary public by stating that:

    “To be sure, a notary public should not notarize a document unless the person who signed the same is the very same person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein. Without the appearance of the person who actually executed the document in question, the notary public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed.”

    As aptly observed by the court in Dela Cruz-Sillano v. Pangan:

    “The court is aware of the practice of not a few lawyers commissioned as notary public to authenticate documents without requiring the physical presence of affiants. However, the adverse consequences of this practice far outweigh whatever convenience is afforded to the absent affiants. Doing away with the essential requirement of physical presence of the affiant does not take into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.”

    The court has repeatedly emphasized in a number of cases the important role a notary public performs, to wit:

    x x x Notarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. A notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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