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Mind that notarial acknowledgment!

(Article published in the April 15, 2002 issue of TODAY, Business Section)

Can you remember when you last read the notarial acknowledgment that is found at the end of the contracts you have executed recently? I can bet all the fees I get for writing this column (you would have to ask my publisher how much that is) that, for a long long time, you have not bothered with reading what is stated in the notarial acknowledgment. Yet, a deficiency in the wording of a notarial acknowledgment can result in litigation that may to go all the way up to the Supreme Court, as demonstrated by this case of Ricky Q. Quilala v. Gliceria Alcantara, et al., G.R. No. 132681, promulgated on 03 December 2001.

On 20 February 1981, Catalina Quilala donated a parcel of land to Violeta Quilala. Under Art. 749 of the Civil Code, a donation of an immovable property, such as land, must be made in public instrument which is ordinarily a document acknowledged before a notary public.

As evidence of the fact that the document was acknowledged before a notary public, the notary public makes a written statement, at the end of the document, that the parties concerned personally appeared before him and they told him that the document was executed by them and that they executed it voluntarily. That statement is called the notarial acknowledgment, which is an obvious misnomer, since it is not the notary but the party who does the acknowledging.

At any rate, a donation, in order to be valid, must be accepted and the acceptance of donated land must likewise be in a public instrument. The donation by the donor and the acceptance by the donee may, however, be made in the same document or in a separate one.

The deed of donated executed by Catalina Quilala consisted of two pages. Both the donation and the acceptance were on the first page which was properly signed by the donor, the donee and two witnesses. On the second page, was only the acknowledgment which was signed, in addition to the notary, also by the donor, the donee, and the same two witnesses.

What was unique about this notarial acknowledgment, however, was that the notary mentioned only the donor, Catalina Quilala, as the person whom he knew to be the one who executed the "foregoing instruments" and who acknowledged to him that the same was, following the hallowed formula, "her own free and voluntary act and deed." The notary failed to say whether or not the donee, Violeta Quilala (whose signature, as previously stated, was also on the second page), also went through the same ritual of owning the acceptance and of admitting to doing it voluntarily.

The question, therefore, was whether the failure of the notary public to say anything about Violeta Quilala meant that she did not accept the donation in a public instrument and therefore the donation was not validly accepted since, again as previously stated, an acceptance of donated land, in order to be valid, must also be in a public instrument.

The Supreme Court held that, under the circumstances, the acceptance of Violeta Quilala was made in a public instrument. The two-page deed of donation, containing as it did both the act of Catalina who donated and the act of Violeta who accepted, is only one document and the fact it was acknowledged before a notary public made the instrument public.

It cannot be considered, said the Supreme Court, a private document in part and a public document in another part. Moreover, the fact that Violeta also signed the second page, which contained only the notarial acknowledgment, indicates that she too acknowledged her act before the notary public. The fact that Violeta was not mentioned by the notary public in his acknowledgment is of no moment. Therefore, the donation was validly made.

It is apparent that the Supreme Court strained, and strained very hard, to prevent what is obviously a formal mistake of the notary public from frustrating what is substantially a legal donation. All the pain and anguish of that long-drawn case, not to mention the expenses and frustrations, could have been avoided had the notary public been more meticulous in drafting the acknowledgment. A word of admonition to the notary from the high court would not have been out of place.

Oh, by the way, how many of you, who executed contracts for the last five years that have to be notarized, really went to a notary public, identified yourselves enough for him to say that you "are known to him and to him known" and acknowledged to him that the contracts you executed were of your "voluntary acts and deeds"? As many as can honestly say they did, can go to my publisher and collect the fees due to me, if any, for today’s column.