No. L-46892. September 30, 1981.
MAIN TOPIC – Rule 35
A complaint for specific performance and damages was filed by Amparo del Rosario for failure of Spouses Santos to execute the Deed of Confirmation of Sale of an undivided 20,000 square meters of land. The defendants filed a motion to dismiss on the ground of lack of jurisdiction, lack of cause of action and prescription. They also claimed the deed of sale was “only an accommodation graciously extended, out of close friendship which is a mere tentative agreement which was never intended nor meant to be ratified by and acknowledged before a notary public.
During the pendency of case, Amparo died and her heirs filed a motion for summary judgment and/or judgment on the pleadings on the ground that the defenses of defendants “either fail to tender an issue or the same do not present issues that are serious enough to deserve a trial on the merits. The Court granted the motion because there are no serious factual issues involved.
Spouses Santos filed an appeal submitting several assignment of errors which includes the (1) issue of the propriety of the rendition of summary judgment and the summary judgment itself. They did not deny the genuineness of their signatures and words and figures on the deed of sale, except in the acknowledgment portion thereof where certain words were allegedly cancelled and changed without their knowledge and consent the alleged false notarization of the deed of sale.
Whether or not the action of the court a quo in rendering a summary judgment has been taken in faithful compliance and conformity with Rule 34, Section 3, Rules of Court.
Yes. For a sale of real property or of an interest therein to be enforceable under the Statute of Frauds, it is enough that it be in writing. It need not be notarized. The Opposition to the Motion for Summary Judgment by the defendant failed to meet the plaintiff’s evidence with countervailing evidence, a circumstance indicating that there are no serious factual issues involved, the motion for summary judgment may properly be granted.
Where a motion for summary judgment and/or judgment on the pleadings has been filed, as in this case, supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as may be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith.
Where a motion for summary judgment has been filed, opposing affidavits should be made, otherwise a summary judgment may be rendered.