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SECOND DIVISION

G.R. No. 118375 October 3, 2003

CELESTINA T. NAGUIAT, petitioner,

vs.
COURT OF APPEALS and AURORA QUEAÑO, respondents.

DECISION

TINGA, J.:

Before us is a Petition for Review on Certiorari under Rule 45, assailing the decision of the Sixteenth Division of the
respondent Court of Appeals promulgated on 21 December 19941 , which affirmed in toto the decision handed down
by the Regional Trial Court (RTC) of Pasay City.2

The case arose when on 11 August 1981, private respondent Aurora Queaño (Queaño) filed a complaint before the
Pasay City RTC for cancellation of a Real Estate Mortgage she had entered into with petitioner Celestina Naguiat
(Naguiat). The RTC rendered a decision, declaring the questioned Real Estate Mortgage void, which Naguiat
appealed to the Court of Appeals. After the Court of Appeals upheld the RTC decision, Naguiat instituted the
present petition. 1ªvvphi1.nét

The operative facts follow:

Queaño applied with Naguiat for a loan in the amount of Two Hundred Thousand Pesos (₱200,000.00), which
Naguiat granted. On 11 August 1980, Naguiat indorsed to Queaño Associated Bank Check No. 090990 (dated 11
August 1980) for the amount of Ninety Five Thousand Pesos (₱95,000.00), which was earlier issued to Naguiat by
the Corporate Resources Financing Corporation. She also issued her own Filmanbank Check No. 065314, to the
order of Queaño, also dated 11 August 1980 and for the amount of Ninety Five Thousand Pesos (₱95,000.00). The
proceeds of these checks were to constitute the loan granted by Naguiat to Queaño.3

To secure the loan, Queaño executed a Deed of Real Estate Mortgage dated 11 August 1980 in favor of Naguiat,
and surrendered to the latter the owner’s duplicates of the titles covering the mortgaged properties.4 On the same
day, the mortgage deed was notarized, and Queaño issued to Naguiat a promissory note for the amount of TWO
HUNDRED THOUSAND PESOS (₱200,000.00), with interest at 12% per annum, payable on 11 September 1980.5
Queaño also issued a Security Bank and Trust Company check, postdated 11 September 1980, for the amount of
TWO HUNDRED THOUSAND PESOS (₱200,000.00) and payable to the order of Naguiat.

Upon presentment on its maturity date, the Security Bank check was dishonored for insufficiency of funds. On the
following day, 12 September 1980, Queaño requested Security Bank to stop payment of her postdated check, but
the bank rejected the request pursuant to its policy not to honor such requests if the check is drawn against

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 insufficient funds.6

On 16 October 1980, Queaño received a letter from Naguiat’s lawyer, demanding settlement of the loan. Shortly
thereafter, Queaño and one Ruby Ruebenfeldt (Ruebenfeldt) met with Naguiat. At the meeting, Queaño told Naguiat
that she did not receive the proceeds of the loan, adding that the checks were retained by Ruebenfeldt, who
purportedly was Naguiat’s agent.7

Naguiat applied for the extrajudicial foreclosure of the mortgage with the Sheriff of Rizal Province, who then
scheduled the foreclosure sale on 14 August 1981. Three days before the scheduled sale, Queaño filed the case
before the Pasay City RTC,8 seeking the annulment of the mortgage deed. The trial court eventually stopped the
auction sale.9

On 8 March 1991, the RTC rendered judgment, declaring the Deed of Real Estate Mortgage null and void, and
ordering Naguiat to return to Queaño the owner’s duplicates of her titles to the mortgaged lots.10 Naguiat appealed
the decision before the Court of Appeals, making no less than eleven assignments of error. The Court of Appeals
promulgated the decision now assailed before us that affirmed in toto the RTC decision. Hence, the present petition.

Naguiat questions the findings of facts made by the Court of Appeals, especially on the issue of whether Queaño
had actually received the loan proceeds which were supposed to be covered by the two checks Naguiat had issued
or indorsed. Naguiat claims that being a notarial instrument or public document, the mortgage deed enjoys the
presumption that the recitals therein are true. Naguiat also questions the admissibility of various representations and
pronouncements of Ruebenfeldt, invoking the rule on the non-binding effect of the admissions of third persons.11

The resolution of the issues presented before this Court by Naguiat involves the determination of facts, a function
which this Court does not exercise in an appeal by certiorari. Under Rule 45 which governs appeal by certiorari, only
questions of law may be raised12 as the Supreme Court is not a trier of facts.13 The resolution of factual issues is the
function of lower courts, whose findings on these matters are received with respect and are in fact generally binding
on the Supreme Court.14 A question of law which the Court may pass upon must not involve an examination of the
probative value of the evidence presented by the litigants.15 There is a question of law in a given case when the
doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt
or difference arises as to the truth or the falsehood of alleged facts.16

Surely, there are established exceptions to the rule on the conclusiveness of the findings of facts of the lower
courts.17 But Naguiat’s case does not fall under any of the exceptions. In any event, both the decisions of the
appellate and trial courts are supported by the evidence on record and the applicable laws.

Against the common finding of the courts below, Naguiat vigorously insists that Queaño received the loan proceeds.
Capitalizing on the status of the mortgage deed as a public document, she cites the rule that a public document
enjoys the presumption of validity and truthfulness of its contents. The Court of Appeals, however, is correct in ruling
that the presumption of truthfulness of the recitals in a public document was defeated by the clear and convincing
evidence in this case that pointed to the absence of consideration.18 This Court has held that the presumption of
truthfulness engendered by notarized documents is rebuttable, yielding as it does to clear and convincing evidence
to the contrary, as in this case.19

On the other hand, absolutely no evidence was submitted by Naguiat that the checks she issued or endorsed were
actually encashed or deposited. The mere issuance of the checks did not result in the perfection of the contract of
loan. For the Civil Code provides that the delivery of bills of exchange and mercantile documents such as checks
shall produce the effect of payment only when they have been cashed.20 It is only after the checks have produced
the effect of payment that the contract of loan may be deemed perfected. Art. 1934 of the Civil Code provides:

"An accepted promise to deliver something by way of commodatum or simple loan is binding upon the parties, but
the commodatum or simple loan itself shall not be perfected until the delivery of the object of the contract."

A loan contract is a real contract, not consensual, and, as such, is perfected only upon the delivery of the object of
the contract.21 In this case, the objects of the contract are the loan proceeds which Queaño would enjoy only upon
the encashment of the checks signed or indorsed by Naguiat. If indeed the checks were encashed or deposited,
Naguiat would have certainly presented the corresponding documentary evidence, such as the returned checks and
the pertinent bank records. Since Naguiat presented no such proof, it follows that the checks were not encashed or

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 credited to Queaño’s account. 1awphi1.nét

Naguiat questions the admissibility of the various written representations made by Ruebenfeldt on the ground that
they could not bind her following the res inter alia acta alteri nocere non debet rule. The Court of Appeals rejected
the argument, holding that since Ruebenfeldt was an authorized representative or agent of Naguiat the situation falls
under a recognized exception to the rule.22 Still, Naguiat insists that Ruebenfeldt was not her agent.

Suffice to say, however, the existence of an agency relationship between Naguiat and Ruebenfeldt is supported by
ample evidence. As correctly pointed out by the Court of Appeals, Ruebenfeldt was not a stranger or an
unauthorized person. Naguiat instructed Ruebenfeldt to withhold from Queaño the checks she issued or indorsed to
Queaño, pending delivery by the latter of additional collateral. Ruebenfeldt served as agent of Naguiat on the loan
application of Queaño’s friend, Marilou Farralese, and it was in connection with that transaction that Queaño came
to know Naguiat.23 It was also Ruebenfeldt who accompanied Queaño in her meeting with Naguiat and on that
occasion, on her own and without Queaño asking for it, Reubenfeldt actually drew a check for the sum of
₱220,000.00 payable to Naguiat, to cover for Queaño’s alleged liability to Naguiat under the loan agreement.24

The Court of Appeals recognized the existence of an "agency by estoppel25 citing Article 1873 of the Civil Code.26
Apparently, it considered that at the very least, as a consequence of the interaction between Naguiat and
Ruebenfeldt, Queaño got the impression that Ruebenfeldt was the agent of Naguiat, but Naguiat did nothing to
correct Queaño’s impression. In that situation, the rule is clear. One who clothes another with apparent authority as
his agent, and holds him out to the public as such, cannot be permitted to deny the authority of such person to act
as his agent, to the prejudice of innocent third parties dealing with such person in good faith, and in the honest belief
that he is what he appears to be.27 The Court of Appeals is correct in invoking the said rule on agency by estoppel. 1awphi1.nét

More fundamentally, whatever was the true relationship between Naguiat and Ruebenfeldt is irrelevant in the face of
the fact that the checks issued or indorsed to Queaño were never encashed or deposited to her account of Naguiat.

All told, we find no compelling reason to disturb the finding of the courts a quo that the lender did not remit and the
borrower did not receive the proceeds of the loan. That being the case, it follows that the mortgage which is
supposed to secure the loan is null and void. The consideration of the mortgage contract is the same as that of the
principal contract from which it receives life, and without which it cannot exist as an independent contract.28 A
mortgage contract being a mere accessory contract, its validity would depend on the validity of the loan secured by
it.29

WHEREFORE, the petition is denied and the assailed decision is affirmed. Costs against petitioner.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

Footnotes
1
Justice Corona Ibay-Somera wrote the ponencia, with Justices Asaali S. Isnani and Celia Lipana-Reyes,
concurring.
2
Promulgated on 8 March 1991 by Judge Manuel P. Dumatol.
3
According to Naguiat, she further delivered to Queaño the amount of Ten Thousand Pesos (₱10,000.00),
thus rounding off the amount she allegedly gave to Queaño to Two Hundred Thousand Pesos (See Petition
for Certiorari, p. 3). Queaño, however, claims that the amount of Ten Thousand (₱10,000.00) was deducted
as the stipulated 5% interest. Records, p. 342.
4
Transfer Certificates of Title Nos. 28631 and 28632, issued by the Register of Deeds for District IV (Pasay
City) of Metro Manila, with a total area of Six Hundred Thirty One (631) Square Meters. Rollo, p. 97.
5
Rollo, p. 98. According to Queaño, the true agreement between the parties was an interest rate of 5% per
month.

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 6
Id., p. 99. Queaño alleged that she made the "stop payment" request because she was withdrawing her loan
application as she failed to receive the loan proceeds which were supposed to be covered by Naguiat’s
checks that were turned not to her but to Ruby Ruebenfeldt, who purportedly was an agent of Naguiat.
Queaño claimed further that Naguiat demanded additional collaterals and instructed Ruebenfeldt to surrender
the checks to Queaño only upon receipt of the additional security.
7
Id., p. 99. Queaño claimed further that Naguiat demanded additional collaterals and instructed Ruebenfeldt
to surrender the checks to Queaño only upon receipt of the additional security.
8
Docketed as Civil Case No. 9330-P.
9
Rollo, p. 5.
10
Id., p. 37.
11
Sec. 28, Rule 130. See Rule 130, Sec. 28. "Section 28. Admission by third party. — The rights of a party
cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided."
12
Sec. 1, Rule 45 states: "A party desiring to appeal by certiorari from a judgment or final order or resolution
of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by
law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only
questions of law which must be distinctly set forth." See also Metro Transit Organization Inc. v. CA, G.R. No.
142133, 19 November 2002.
13
W-Red Construction v. CA, G.R. No. 122648, 17 August 2000.
14
Engreso v. De La Cruz, G.R. No. 148727, 9 April 2003.
15
Western Shipyard Services, Inc. v. CA, G.R. No. 110340, 28 May 2001.
16
Bagunu v. Piedad, G.R. No. 140975, 8 December 2000.
17
Exceptional circumstances that would compel the Supreme Court to review the findings of fact of the lower
courts are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures;
(2) when the inference made is manifestly absurd, mistaken or impossible; (3) when there is grave abuse of
discretion in the appreciation of facts; (4) when the judgment is premised on a misapprehension of facts; (5)
when the findings of fact are conflicting; (6) when the Court of Appeals in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the
Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion; and (8) when the findings of fact of the Court of
Appeals are contrary to those of the trial court, or are mere conclusions without citation of specific evidence,
or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact
of the Court of Appeals are premised on absence of evidence but are contradicted by the evidence of record.
See Sacay v. Sandiganbayan, 226 Phil. 496, 510 (1986).
18
Rollo, p. 43.
19
See Gerales v. Court of Appeals, G.R. No. 85909, 218 SCRA 638, 648, 9 February 1993, and Agdeppa vs.
Ibe, G.R. No. 96770, 220 SCRA 584, 594, 30 March 1993.
20
Art. 1249, New Civil Code. ". . . The delivery of promissory notes payable to order, or bills of exchange or
other mercantile documents shall produce the effect of payment only when they have been cashed, or when
through the fault of the creditor they have been impaired."
21
BPI Investment Corporation v. Court of Appeals, G.R. No. 133632, 377 SCRA 117, 124, 15 February 2002.
The Court therein clarified the previous ruling in Bonnevie v. Court of Appeals, 210 Phil. 104, 108 (1983)
which apparently suggested that a contract of loan was a consensual contract, by noting that the contract in
Bonnevie fell under the first clause of Art. 1934 of the Civil Code, it being an accepted promise to deliver
something by way of simple loan.

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 22
See Sec. 29, Rule 130. "Section 29. Admission by co-partner or agent. – The act or declaration of a partner
or agent of the party within the scope of his authority and during the existence of the partnership or agency,
may be given in evidence against such party after the partnership or agency is shown by evidence other than
such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor or other
person jointly interested with the party."
23
Rollo, p. 49.
24
Security Bank & Trust Company Check No. 017399, drawn by Ruebenfeldt payable to Naguiat, and
postdated to November 15, 1980. Naguiat accepted the check, allegedly because she wanted to be assured
of repayment. However, when Naguiat deposited this new check on 15 November 1980, the same was
dishonored for being drawn against a closed account. On account of the dishonor of Ruebenfeldt’s check,
Naguiat filed a criminal complaint for violation of B.P. Blg. 22 with the City Prosecutors’s Office of Caloocan.
However, the City Prosecutor dismissed the said action on the ground that Ruebenfeldt’s liability was civil and
not criminal. See Rollo, p. 5 to 6.
25
Rollo, p. 50.
26
Art. 1873. "If a person specifically informs another or states by public advertisement that he has given a
power of attorney to a third person, the latter thereby becomes a duly authorized agent, in the former case
with respect to the person who received the special information, and in the latter case with regard to any
person."
27
Cuison v. Court of Appeals, G.R. No. 88531, 26 October 1993.
28
China Banking Corporation v. Lichauco, 46 Phil. 460 (1926).
29
Filipinas Marble Corp. v. Intermediate Appellate Court, 226 Phil. 109, 119 (1986).

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