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SMITH v. ANSON

August 20, 1992

EDWARD SMITH, Plaintiff,
v.
ELDON T. ANSON, et al., Defendants.



The opinion of the court was delivered by: JAMES L. FOREMAN

MEMORANDUM AND ORDER

 FOREMAN, Senior District Judge:

 I. FACTS

 In 1966, plaintiff Edward Smith purchased approximately 464,700 acres of Brazilian land from Maneol Berilo Gomes Dias. The land, which is known as Fazenda Pratinha, is located in the state of Bahia about 200 miles from the Brazilian capital of Brasilia. The purchase was recorded on January 16, 1967, in the Office for Registration of Real Estate and Mortgages in the county of Barreiras, Bahia, with the following chain of title:

 a) Transferee Edward Smith obtained the land by purchase from Manoel Berilo Gomes Dias in accordance with a public deed of purchase and sale dated December 10, 1966;

 b) Transferor Manoel Berilo Gomes Dias obtained the land from the estate of decedent Jose Vicente de Matos and his wife in accordance with a Letter of Adjudication issued in the City of Damianopolis, Goias, on November 3, 1966.

 See Plaintiff's Appendix, Document No. 86, at 6-7; Defendants' Exhibit B Attached to Affidavit of Keith Rosenn, Document No. 70.

 Shortly after Smith purchased Pratinha, many Brazilian citizens began complaining about foreigners acquiring large tracts of their native land. As a result, the Brazilian government passed laws making it difficult for foreigners to acquire and maintain land in that country. The state of Bahia also began investigating allegations that title to certain lands within its jurisdiction had been fraudulently created. Pratinha was among the lands in question.

 The state investigation eventually led to criminal charges against Maneol Berilo Gomes Dias and 32 other defendants. The indictment accused the defendants of participating in an elaborate scheme to create fake land titles through summary probate proceedings. Defendants' Exhibit A Attached to Reply Affidavit of Keith Rosenn, Document No. 112. The indictment alleged, inter alia, that Maneol Berilo Gomes Dias falsified the title to Pratinha on behalf of a former legislator, Gerson de Castro Costa. Id.

 The case was heard by the Tribunal of Justice of Goias, which convicted Maneol Berilo Gomes Dias and sentenced him to four years and eight months in prison. The court's decision, issued on September 27, 1978, contains the following paragraph:

 In truth, Maneol Berilo fitted in perfectly in the fraudulent schemes of the fake lawyer Osiris, well advised by the "lawyer" Severiano. With him Berilo traveled to Taguatinga, for the purpose of requesting three summary probates processed there, including the ones referred to the deceased Manoel Lopes da Paixao and Vitoria da Paixao (the lands "Itaguari", "Pratudao") (Pgs. 474/508 3d vol.). It was Berilo who presented Osiris to Gerson de Castro Costa, so that the latter might enter into the real estate deals. From this resulted the summary probate referring to Miquel de Souza and Ana Maria de Souza, judged on December 26, 1966, by the municipal judge of Damianopolis, and whose petition was based upon false certificates (docs. of pgs. 809/812, 4th vol.). The same Berilo requested, in the subdivision of the judicial district of Damianopolis, the summary probate of the property "Prainha", included in the estate of Jose Vicente de Matos and Pracheda Bispo de Matos (pg. 586, 4th vol.).

 Defendants' Exhibit C Attached to Affidavit of Keith Rosenn, Document No. 70, at 16. In translating this opinion, the defendants' expert inserted a parenthetical after the word "Prainha," as follows: "[sic: a typo; it should be "Pratinha"]." The plaintiff and his experts argue that the translator improperly interpreted the document. They insist that "Prainha" is correct. Thus, as discussed below, they argue that Maneol Berilo Gomes Dias was not convicted of fraud with respect to Pratinha, but in connection with an entirely different piece of property.

 Iraci Resende, the ex-municipal judge of Damianopolis, also was convicted for his role in presiding over the summary probate proceedings and was sentenced to four years and eight months in prison. Number six on the list of the summary probates for which he was convicted was as follows:

 6) Decedents: Jose Vicente de Matos and Pracheda Bispo de Matos

 Requestors: Manoel Berilo Gomes Dias and his wife (atty. Joao Sombra do Norte Fontes and Severiano de Farias Filho)

 Property: Land "Pratinha" (S. Desiderio, Bahia).

 Id. at 10-11. Gerson de Castro Costa, on the other hand, was acquitted. The court's judgment linked this defendant with Maneol Berilo Gomes Dias and Pratinha, stating:

 Manoel Berilo confirms that it was he who indicated to Congressman Gerson to buy the property "Pratinha". He said that it was a good deal. The property was probated in the name of Berilo, who, through his attorney Severiano de Faria Filho, requested the summary probate in Damianopolis. When the summary probate was finished, Berilo, at the request of Gerson, gave a power of attorney to Washington Vargas Laboisiere to sell the land, which was done.

 From what appears in the investigation, the heirs that figured in this summary probate (the decedents Jose Vicente de Matos and Pracheda Bispo de Matos) are fictitious or knew nothing of the inheritance.

 Id. at 19. The court, however, found that the state had not proven that Gerson de Castro Costa had the fraudulent intent to commit the crime.

 The land fraud investigation prompted the state of Bahia to bring a civil action against Maneol Berilo Gomes Dias and nine other defendants to nullify the registration of the fraudulently created titles and to recover the property for the state. The suit, filed on May 16, 1973, specifically refers to the following summary probate proceeding:

 Decedents: Jose Vicente de Matos and his wife D. Pracheda Bispo de Matos.

 Requestors: Manoel Berilo Gomes Dias and his wife in the status of assignees of the ...


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