ASUNCION Y. DARAG, PLAINTIFF-APPELLEE, VS. ALFREDA TANAY COLICO AND DANILO COLICO, DEFENDANTS-APPELLANTS.
SORONGON, J.:
The Antecedent Facts
On February 3, 2004, plaintiff-appellee Asuncion Darag (Asuncion) together with Ponciano Darag filed a Complaint[3] for “Declaration of Ownership, Quieting of Title with Preliminary Injunction and Damages” against defendants-appellants Alfreda Tanay Colico and Danilo Colico (defendants-appellants) over a parcel of land more particularly described as follows:
“A parcel of residential land situated at Libliban, Agos, before now San Miguel, Bato, Camarines Sur, with approximate area of 384 sq. m., bounded on the North by herein plaintiff Asuncion Darag on the East by Pastor Abonita, on the South by Cecilio Sabas and on the West by plaintiff Asuncion Darag; Portion of the land declared in the name of Plaintiff Asuncion Darag under Tax Dec. No. 97-025-00282 and assessed at P13,898.00”
From the records we found that on April 26, 1962, Florentina Darag and Rosa Darag with the consent of their father Paulino Darag, sold their corresponding shares in the above-described residential lot to Asuncion Darag.[4]
During the lifetime of spouses Florentina Darag-Tanay and Martin Tanay ( parents of defendants-appellants) they asked Asuncion to allow them to construct a house on the subject lot to which Asuncion obliged considering that Florentina is the sister of her husband and on condition that they would leave when she needed the lot.
Florentina and Martin died sometime in 1987 and 1999, respectively. During their lifetime, however, their children visited them in the house the couple had constructed on the subject land. After Martin died, defendants-appellants occupied the said house and claimed ownership thereof. Asuncion insisted that the occupancy of Florentina and Martin was by her mere tolerance and liberality.
In their answer, defendants-appellants claim that they own the disputed lot and there has been no conveyance of any kind thereof by their parents. The subject lot had belonged to Paulino Darag married to Roqueza Relos. The said spouses have nine (9) children namely: Rosa, Florentina, Ponciano (a.k.a. Ray, the husband of Asuncion), Graciano, Leoncia, Pedro, Rita, Amaldo and Maria all surnamed Darag. All nine (9) siblings remain to be co-owners of the subject property because Paulino Darag’s estate has never been settled nor sold to anyone.
By Decision dated March 10, 2010 the trial court disposed of the case in this wise:
“WHEREFORE, clearly finding preponderance of evidence in favor of the plaintiffs, judgment is hereby rendered declaring Asuncion Y. Darag married to Ponciano Darag as owner of the property described in paragraph 2 of the complaint. Their title thereto is, for all legal intents and purposes, hereby QUIETED.
Defendants are directed to peacefully vacate and surrender said landholding to the plaintiffs.
No damage and costs.
SO ORDERED.”
In its decision, the court a quo opined:
The overall weight and credibility of the testimonies of the witnesses for the plaintiffs along with their documentary evidence greatly outweighs that of the defendants.
The five (5) Deeds of Sale in favor of plaintiff Asuncion Y. Darag are all duly notarized, the Deed of Sale executed by Florentina and Rosa Darag included. As a notarized document, it has in its favor the presumption of regularity and it carries evidentiary weight conferred upon it with respect to its due execution. It is admissible in evidence without further proof of its authenticity and is entitled to full faith and credit upon its face. (Ilao-Quinal, et al., vs. Mapile, G.R. No. 15087, October 25, 2005, citing De la Cruz vs. De La Cruz, G.R. No. 146222, January 15, 2004, 419 SCRA 648).
Defendants were the ones assailing the Deed of Sale executed by Florentina and Rosa Darag in favor of Asuncion Y. Darag because according to them, their parent Florentina never signed the document.
Forgery cannot be presumed. Under the Rules, defendants had the onus probandi to establish such a forgery. They tried but failed to overcome the presumption of regularity of the notarized document. The rules require that the forgery be established not merely by preponderance of evidence but by clear, positive and convincing evidence. (BPI vs. Casa Montessori International, G.R. No. 149507, May 28, 2004)
Defendants claimed that Florentina could not have signed the document simply because they were not aware of any such sale. This is not the kind of evidence that would prove forgery. They are plainly self-serving.
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Defendant Alfreda Colico herself said she does not know of any sale by her grandfather or her parents to Asuncion Darag. She claimed to have lived in Bato, Camarines Sur all her life but later admitted having lived in Manila and go back to Bato only after giving birth to her first born.
By contrast, plaintiff Asuncion Darag categorically declared that she was present when the deed of sale was executed by Florentina and Rosa Darag. She saw them sign/thumbmark the document before the notary public.
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Plaintiff Asuncion Darag has been paying the taxes on the land since 1970. Her payment of taxes is only consistent with the sales in her favor.
It needs no stressing that the tax declaration presented by the defendants dates back to the time prior to the sale by Florentina and Rosa Darag to plaintiff Asuncion Darag. This does not only militate against the claim of defendants that they own the subject land, this also bolsters the fact of sale by Florentina and Rosa Darag to Asuncion Darag with the consent of Paulino Darag.
Defendants posit that the sale by Florentina Darag to Asuncion Y. Darag is void because there was then no written partition or settlement of the estate of Paulino Darag up the present. They also hold that since there is no partition or settlement, the heirs of Paulino Darag, which includes them defendants, continue to co-own the bigger property to which the subject property is included. It is their opinion that there was no way for the plaintiff to be certain that the property described in paragraph 2 of the complaint is hers.
With defendants’ assertion that there is no way who owns what in the property of Paulino Darag, it may be asked how defendants became so certain that the property they claim to be theirs in their answer is what their parents inherited from Paulino Darag. But this is hypothetical and a non-issue.
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Unsatisfied with the foregoing ruling of the trial court, defendants-appellants through this appeal alleged:
THE COURT A QUO GRAVELY ERRED IN DECLARING PLAINTIFF-APPELLEE ASUNCION DARAG AS THE LEGAL OWNER OF THE SUBJECT RESIDENTIAL LAND, DESPITE THE FACT THAT THE DEED OF SALE EXECUTED BETWEEN HER AND FLORENTINA AND ROSA DARAG IS VOID.
The core issue here is whether or not the trial court correctly declared Asuncion Y. Darag married to Ponciano Darag as owner of the subject property.
In their appeal brief, defendants-appellants argued that the Deed of Sale executed by Florentina and Rosa was void because it appeared that Paulino did not sign his name as seller. Hence, his signature apparently giving his consent only confirms the view that Rosa was not the owner at the time of the sale. In fine, defendants-appellants posit that it was erroneous for the trial court to have awarded ownership of the subject property to Asuncion.
After a careful assessment of the records of this case, We are constrained to dismiss the appeal for lack of merit.
Preliminarily, it has not escaped from the observation of the court the change in the main theory of defendants-appellants. Records show that in the proceedings before the court a quo, they have assailed the Deed of Sale by arguing that their mother, Florentina, never signed the document. They claimed that the latter could not have signed the document simply because they were not aware of any such sale. In addition, defendants-appellants alleged that the signature of Paulino under the sub-heading “With the consent of” was not his signature.
From the foregoing, it is clear that the main theory raised in the court below was forgery. Hence, the decision tackled on the issue of whether or not the signatures of Florentina and Paulino appearing in the Deed of Sale were forged. In fine, that being the primary issue in the court below, the same should take center stage in this appeal.
On this note, We express Our agreement with the findings of the trial court that defendants-appellants’ failed to prove by clear and convincing evidence that the signatures of Florentina and Paulino were forged. Simply arguing that Florentina’s signature is forged because defendants-appellants were not aware that she signed the Deed of Absolute Sale or that merely claiming that Paulino’s signature thereon is not his signature would not pass judicial muster. Indeed, defendants-appellants did not present sample genuine signatures of Florentina and Paulino to compare with the alleged forged signatures in the subject Deed of Sale.[5] No handwriting expert was offered as expert witness.[6] In contrast, Asuncion categorically testified that she was present when the Deed of Sale was executed by Florentina and Rosa and that she saw them signed the document before the notary public.[7]
Withal, by trying to restructure their stance with regard to the Deed of Sale, defendants-appellants can be very well considered as having assented to the ruling of the trial court that there was no forgery to speak of and that they have failed to prove otherwise. Jurisprudence teaches that when a party deliberately adopts a certain theory and the case is decided upon that theory in the court below, he will not be permitted to change the same on appeal, because to permit him to do so would be unfair to the adverse party.[8] The Supreme Court had likewise, in numerous times, affirmed that points of law, theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage. Basic considerations of due process underlie this rule. It would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court.
At any rate, even if We are to allow defendants-appellants to change their position by arguing that Paulino’s signature cannot be considered binding, the same will still fail.
Records clearly reveal that Paulino, during his lifetime, had orally partitioned his estate by determining the specific shares to be given to his children. Plaintiff-appellee endeavored to prove such partition by presenting five (5) notarized Deeds of Sale[9] executed in her favor by the said children of Paulino namely: Florentina, Rosa, Arnaldo, Maria and Leoncia. Plaintiff-appellee had also presented a sketch[10] showing the land of Paulino which was divided among his children and testified which part pertains to the object of each Deed of Sale.
Verily, the object of each Deed pertains to the respective shares of Paulino’s children over their father’s property. Not one of Paulino’s children questioned said Deeds of Sale. More importantly, Paulino, who can still be considered as the legitimate owner of the property at the time of the sale, never challenged the Deeds of Sale and instead consented to it.
Contrary to the submission of defendants-appellants, the signature of Paulino speaks volumes and cannot just be set aside. The signature manifests an express consent to the sale of his property as given to Florentina and Rosa. As aptly observed by the trial court, “by signing his name to give his consent to the contract of sale, Paulino confirms the fact that he still owns the property even as he also affirms the fact that he has already given that specific property to his daughters Florentina and Rosa, albeit verbally only.” In conclusion, by becoming an active party to the sale, the conveyance of the same should thus be upheld.
WHEREFORE, the Appeal is hereby DENIED for lack of merit. Accordingly, the Decision dated March 10, 2010 of the Regional Trial Court of Iriga City, Branch 60 in Civil Case No IR-3435 is hereby AFFIRMED.
SO ORDERED.
Carandang, (Chairperson), and Gonzales-Sison, JJ., concur.
[1] Rollo, pages 30-41.
[2] Rolo, pages 42-48.
[3] Record, pages 1-4.
[4] “Deed of Absolute Sale”, Record at page 5.
[5] Heirs of the Late Felix M. Bucton vs.Spouses Go, G.R. No. 188395, November 20, 2013.
[6] Dabon vs. Court of Appeals, G.R. No. 174937, June 13, 2012.
[7] TSN, October 2, 2006, pp. 23-24.
[8] Carolina (Carlina) vda. de Figuracion et al., vs. Emilia Figuracion-Gerilla, G.R. No. 151334, February 13, 2013.
[9] Record, Exhibits “A” to “E”, inclusive, pages 190-194.
[10] Record, Exhibit “J”, page 204.