On appeal from Superior Court, Law Division, Mercer County.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Morgan, J.A.D. Fritz, P.J.A.D. (dissenting).
[170 NJSuper Page 78] Three small oil paintings by plaintiff Georgia O'Keeffe, a living American artist of worldwide renown, were stolen from a New York gallery owned by her husband, Alfred Stieglitz, in 1946 by some unknown thief. Their whereabouts remained unknown until March 1976, some 30 years after the theft, when
plaintiff discovered them in the possession of defendant Barry Snyder, d/b/a Princeton Gallery of Fine Art, who had purchased them from third party defendant Ulrich A. Frank for $35,000. Plaintiff commenced the present replevin action on May 18, 1976 in an attempt to regain their possession. She appeals from summary judgment entered in defendant's favor adjudging her claim barred by the six-year period of limitations applicable to replevin suits. N.J.S.A. 2A:14-1.
The essential facts are relatively free from dispute despite dimmed memories and the death of a prior possessor which has foreclosed knowledge of the date when, and circumstances in which, the paintings passed from the thief to the subsequent possessors. They have been derived from answers to interrogatories and those given by way of oral deposition.
The theft was not reported to the police, plaintiff viewing such official efforts to locate the paintings as being futile. "I was certain [they] could not or would not do anything about what I'm sure they would have thought was a minor theft." Nor did she confront a man by the name of Estrick, the person she suspected of being the thief. Instead, she hoped that the paintings would be found as were others stolen from the gallery at about the same time. Word of the theft was, however, given to many persons within her artistic circle.
Plaintiff's husband Stieglitz died during the summer of 1946 soon after the theft of the paintings and plaintiff became involved in the settling of his estate over the next three years. As she recited in her affidavit, "I had the burdensome job of settling his estate and could not really pursue the stolen paintings beyond mentioning it to people who were around -- the artists -- the Stieglitz circle."
In February 1947 one Doris Bry began working as plaintiff's secretary. She and plaintiff discussed the stolen paintings many times over the course of the years although neither reported the loss because plaintiff was convinced such efforts would be unavailing. Eventually, however, in 1972, years before the sale
to defendant Snyder, the paintings were listed as stolen with the Art Dealers Association which maintained a registry of stolen paintings.*fn1
At some unspecified date and in some unspecified manner after the 1946 theft, the paintings came into possession of third-party defendant's father, Dr. Ulrich Frank, an art collector. According to his son, Ulrich A. Frank, the paintings were displayed "prominently" on the walls of the residences where his father lived during the period of his possession.*fn2 Information as to Dr. Frank's acquisition of these paintings will probably never be known because he died in 1968 before these facts assumed importance in litigation. Third-party defendant Frank acquired the paintings in February 1965 by gift from his mother and father. For the most part, the paintings remained in his homes on display for the next ten years, during part of which period he lived in Yardley, Pennsylvania. In December 1968 the paintings were displayed at a one-day art exhibit at the Jewish Community Center in Trenton, the owner being there listed as Anonymous. In 1973 all three paintings were consigned to the Danenberg Gallery in New York for sale. Finding no purchaser for them, the Gallery returned them to Frank. In March 1974 they were consigned to defendant Snyder for sale and in March 1975 Snyder purchased the three paintings for $35,000.
O'Keeffe first learned of the whereabouts of the paintings from an associate in New York who informed her that the paintings had been offered for sale to the Andrew Crispo Gallery in New York, presumably when under consignment to the Danenberg Gallery. From this information plaintiff was
able to locate the paintings in Snyder's Princeton gallery in March 1976. Her demand for the paintings was rejected and on May 18, 1976 she filed the present suit. Defendant concedes that plaintiff lacked knowledge as to the whereabouts of the paintings between February 1946 and February 1976.
In her complaint plaintiff simply sought possession of the paintings which she alleged to have been stolen from her. Defendant's amended answer denied the essential allegations of the complaint and set out, as separate defenses, that (1) he was the owner of the paintings, (2) plaintiff's claim was barred by laches, (3) plaintiff's claim was barred by limitation, and (4) he held valid title by adverse possession. The record contains no responsive pleadings by third-party defendant Frank and plaintiff has filed no subsequent amendment to the complaint asserting any cause of action against him. Following discovery by way of interrogatories and oral depositions, plaintiff and defendant filed cross-motions for summary judgment.
In an oral opinion granting defendant's motion and denying plaintiff's, the trial judge held that "defendant has simply failed to establish several of the basic requirements of adverse possession." He found that defendant's possession and that of those preceding him and upon which he relies was not a "continual possession which was visible, open and notorious so as to put the plaintiff directly or impliedly on notice of the defendant's possession." Nonetheless, he held plaintiff's suit barred by passage of the statutory six-year period of time (N.J.S.A. 2A:14-1), holding that her cause of action accrued at the time of the original theft in 1946. The indulgence of the discovery rule was denied plaintiff because "she failed to confront anyone or take any action at that time [at the time of the theft] against anyone, including a possible thief named Estrick. She simply did nothing." Plaintiff appeals.
We start our consideration of this interesting case with an attempt to focus upon the narrow issue before us. Defendant
virtually concedes that plaintiff lost possession of the paintings by theft. Indeed, he has no other choice given plaintiff's uncontradicted testimony, the affidavits of others that record conversations, antedating by years the present controversy, concerning this theft and the whereabouts of the stolen paintings, and the listing of the paintings as stolen in 1972 in a registry of stolen art years before defendant acquired title. Defendant also concedes the indisputable proposition of law that a thief acquires no title to the property stolen by him and can pass none to others regardless of their good faith and ignorance of the theft. Joseph v. Lesnevich , 56 N.J. Super. 340, 346 (App.Div.1959); Ashton v. Allen , 70 N.J.L. 117, 119 (Sup.Ct.1903); Restatement, Torts 2d, § 229, comment (e) at 448 (1965); Prosser, Torts (4 ed. 1971), § 15 at 87. It follows, then, that defendant must concede plaintiff's title to the paintings in question subject to her challenged right to assert that title and claim the paintings. If defendant is to retain the paintings, it is only as a result of the passage of time.
The time within which a suit in replevin must be brought is specified in N.J.S.A. 2A:14-1 as being within six years of the date on which the cause of action accrues. The essential question posed for resolution by the trial court and us is when did plaintiff's cause of action accrue. Did the six-year period for suit commence running with the 1946 theft? Did it start running anew with each subsequent transfer of the paintings as against each successive new possessor? Does plaintiff's ignorance concerning the whereabouts of the paintings and in whose possession they were at any given time affect the running of the statutory period? Does the good faith or absence of it on the part of those who acquire possession through the thief affect the manner in which the statutory time period runs? How, if at all, does the doctrine of adverse possession affect the running of the statutory period? These are the areas of inquiry about which we must be concerned.
Although authority concerning limitations of actions to recover possession of chattels is not plentiful, we do not write on a clean slate. The controlling authority of Redmond v. New Jersey Historical Society , 132 N.J. Eq. 464, 473-476 (E. & A.1942), held principles of adverse possession, traditionally applicable to real property, to apply as well to personalty.
Dean Ames, in fully considering this question, contrasts the Roman and the English laws on the subject. He persuasively demonstrates, by a wealth of authorities, that other courts, when considering personalty, have consistently applied the same rules of law concerning the necessary requisites of adverse possession that they applied when considering the question of adverse possession of realty. The basis for this like application of principle is, in our opinion, sound and just. We adopt it. [at 473]
This being a decision of our then court of last resort, we are permitted to do no less. Defendant, who raised the issue as a defense, agrees, as does plaintiff who prevailed thereon, as a matter of fact, in the trial court. See also, Lightfoot v. Davis , 198 N.Y. 261, 91 N.E. 582 (Cr.App.1910); 3 American Law of Property , § 15.16 at 834-838 (1952).
Defendant does not challenge the summary nature of the ruling on the adverse possession issue by referring to unresolved issues of fact.*fn3 Rather, he contends that the asserted incorrect resolution of this issue stemmed from an error of law. Our own review of the record ...