IN RE COMPLAINT OF TERESITA MERCADO, PETITIONER, VS. ALMARIO T. AMADOR, RESPONDENT.

Mercado versus Amador

The Case

This is an administrative case for disbarment. Teresita Mercado filed a verified petition with the Supreme Court charging Attorney Almario T. Amador with falsifying an affidavit that he himself notarized and then submitted to a trial court as counsel for the opposing party. The charge is serious, because falsification strikes at the lawyer's oath and at the integrity of the notarial system. The case matters for two reasons. First, it teaches the standard of proof in disbarment proceedings, which is proof beyond reasonable doubt of malice or intent. Second, and more importantly for the modern bar, it is the classic statement that the entries in the notarial register must be made by the notary public himself, and that delegating that task to clerks is gross negligence for which the notary may be disciplined.

Procedural History

The complainant filed a verified petition for disbarment directly with the Supreme Court. The Court referred the matter to the Office of the Solicitor-General for investigation. The Solicitor-General conducted the investigation, received the evidence of both sides, and submitted a report and recommendation finding the charges of falsification unfounded but finding the respondent negligent in his duties as a notary public. The case then came back to the Supreme Court for decision on the report, and the Court resolved it in April 1972.

Facts

Teresita Mercado had obtained title over a parcel of land in a case before the Court of First Instance of Bulacan, after the vendors, the spouses Teofilo Hilario and Aguida Nicolas, failed to redeem the land for 3,200 pesos within the stipulated period. The spouses, through their counsel Attorney Amador, tried to appeal, but the appeal was dismissed for not having been perfected on time. On 7 January 1965, the spouses, again through Attorney Amador, filed a pleading entitled Consignation and Manifestation, to which was attached the affidavit of Teofilo Hilario. In that affidavit, Hilario stated that he had offered Mercado the 3,200 pesos and incidental expenses to redeem the land, but she refused to accept payment. Mercado opposed the consignation, arguing not that no tender was made, but that redemption was premature.

The affidavit had been sworn to before Attorney Amador on 31 December 1964, which was the very day his commission as a notary public expired. It bore Document Number 1176, Page 62, Book 8, Series of 1964. The complainant charged that this same document number had already been entered in the notarial book for a contract of employment, and that the respondent used the old number to deceive the trial court.

In his defense, the respondent admitted the affidavit but explained that the erroneous numbering and the omission to report it among his notarized documents were due to honest mistake, accident, and excusable neglect. He testified that on that day he notarized about 180 documents, that his clerks made the entries in his notarial books, and that he himself wrote the number, page, and book on the affidavit after seeing what appeared to be a vacant number in his office book. The evidence showed that the contents of the affidavit were true, that there had in fact been a tender of payment followed by consignation, and that the trial court was not deceived, because it held that lack of tender did not affect the validity of the consignation.

Issues

• Whether or not the respondent falsified the affidavit of Teofilo Hilario and used it to deceive the trial court, such that he should be disbarred.
• Whether or not the respondent was negligent in the performance of his duties as a notary public in allowing his clerks to make the entries and numbering of documents in his notarial register and books.

Applicable Provisions

Section 246 of the Revised Administrative Code provides:

Section 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 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.

This provision defines the notary's personal duty over his register, and it is the measure against which the respondent's delegation of the entries to his clerks is judged.

Section 248 of the Revised Administrative Code provides:

Section 248. Supervision of judges of first instance over notaries public. The judge of the Court of First Instance in each judicial district shall at all times exercise supervision over the notaries public within his district and shall keep himself informed of the manner in which they perform their duties by personal inspection wherever possible, or from reports which he may require from them, or from any other available source. In the City of Manila such supervision shall be exercised by one of the Judges of the Court of First Instance of Manila to be thereunto assigned by the judges of the branches of said Court.

This provision explains why the Supreme Court, finding negligence but lacking supervisory jurisdiction over notaries public, referred the matter to the Court of First Instance of Manila for disciplinary action.

Ruling

On the first issue, the Court dismissed the disbarment charge. It agreed with the Solicitor-General that there was no proof beyond reasonable doubt of any malice or intent on the part of the respondent to falsify the affidavit, nor of any deception for its use in the trial court. The contents of the affidavit were admitted to be true. The trial court could not have been deceived, because it held that lack of tender of payment did not affect the validity of the consignation. There was no evidence that the affidavit was notarized on any date other than the date on its jurat, and no evidence that the number was deliberately assigned with an evil motive.

On the second issue, the Court found the respondent grossly negligent. In allowing his clerks to make the entries and numbering of documents in his notarial register and books, he failed to comply with the personal duty imposed by Section 246. The Court explained that the law evidently contemplates that the entries in the bound notarial register and the assignment of consecutive numbers must be made by the notary public himself, for only thus can there be certainty of the chronological order of the entries and the correctness of the numbers assigned. The notary certifies not only the identity of the parties but also the date and occasion of the acknowledgment, and it is in reliance on the correct performance of these duties that the law dispenses with other evidence of due execution. Were the notary to allow entries to be made by other persons, irregularities could easily occur, as in this case, and the faith reposed on notarial certificates would be destroyed.

The Court registered its disapproval and condemnation of the respondent's negligence, but noted that it has no supervisory jurisdiction over notaries public. It therefore referred the case to the Court of First Instance of Manila, so that the judge assigned to supervise notaries public under Section 248 could take the requisite disciplinary action against the respondent as notary public.

Doctrine

A notary public must personally make the entries in his notarial register and personally assign the consecutive numbers to the instruments he notarizes. Allowing clerks to make those entries and numbers is gross negligence in the discharge of his duties as a notary public, and it exposes him to disciplinary action even absent any showing of bad faith.

In disbarment proceedings, the charge of falsification requires proof beyond reasonable doubt of malice or intent to falsify and to deceive. Where the contents of the affidavit are true and the trial court could not have been misled, the charge fails.

The Supreme Court has no supervisory jurisdiction over notaries public. Supervision belongs to the judge of the Court of First Instance under Section 248 of the Revised Administrative Code, and it is to that judge that a case of notarial negligence must be referred for disciplinary action.

Disposition

The complaint for disbarment was dismissed and the respondent absolved, but a copy of the decision, together with the evidence, was ordered furnished to the Court of First Instance of Manila for appropriate disciplinary action against him as notary public.

Remember This

Memorize this line: the entries in the notarial register and the assignment of consecutive numbers must be made by the notary public himself, and delegating that task to clerks is gross negligence. Examiners use this case in legal ethics and notarial practice to test the notary's personal duty over his register, and in remedial law to test the quantum of proof in disbarment, which is proof beyond reasonable doubt of malice.