More on Adverse Possession

• Author: Christian Turner
• Pages: 1-38

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1. More on Adverse Possession

1.1. Personal Property

O’Keeffe v. Snyder,

83 N.J. 478 (1980)

Joel H. Sterns, Trenton, for defendant-appellant Barry Snyder, d/b/a Princeton Gallery of

Fine Art (Sterns, Herbert & Weinroth, Trenton, attorneys; Mark D. Schorr and William J. Bigham,

Trenton, on briefs).

Thomas C. Jamieson, Jr., Trenton, for third party defendant-appellant Ulrich A. Frank

(Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, attorneys).

Roger A. Lowenstein, Roseland, for plaintiff-respondent (Lowenstein, Sandler, Brochin,

Kohl, Fisher & Boylan, Roseland, attorneys; Roger A. Lowenstein and Lee Hilles Wertheim,

Roseland, on briefs).

Pollock, J.

This is an appeal from an order of the Appellate Division granting summary judgment to

plaintiff, Georgia O’Keeffe, against defendant, Barry Snyder, d/b/a Princeton Gallery of Fine Art,

for replevin of three small pictures painted by O’Keeffe. In her complaint, filed in March, 1976,

O’Keeffe alleged she was the owner of the paintings and that they were stolen from a New York art

gallery in 1946. Snyder asserted he was a purchaser for value of the paintings, he had title by adverse

possession, and O’Keeffe’s action was barred by the expiration of the six-year period of limitations

provided by N.J.S.A. 2A:14-1 pertaining to an action in replevin. Snyder impleaded third party

defendant, Ulrich A. Frank, from whom Snyder purchased the paintings in 1975 for $35,000.

The trial court granted summary judgment for Snyder on the ground that O’Keeffe’s action

was barred because it was not commenced within six years of the alleged theft. The Appellate

Division reversed and entered judgment for O’Keeffe. A majority of that court concluded that the

paintings were stolen, the defenses of expiration of the statute of limitations and title by adverse

possession were identical, and Snyder had not proved the elements of adverse possession.

Consequently, the majority ruled that O’Keeffe could still enforce her right to possession of the

paintings.

… . We reverse and remand the matter for a plenary hearing in accordance with this opinion.

I

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The record, limited to pleadings, affidavits, answers to interrogatories, and depositions, is

fraught with factual conflict. Apart from the creation of the paintings by O’Keeffe and their

discovery in Snyder’s gallery in 1976, the parties agree on little else.

O’Keeffe contended the paintings were stolen in 1946 from a gallery, An American Place.

The gallery was operated by her late husband, the famous photographer Alfred Stieglitz.

… . . In 1946, Stieglitz arranged an exhibit which included an O’Keeffe painting, identified

as Cliffs. According to O’Keeffe, one day in March, 1946, she and Stieglitz discovered Cliffs was

missing from the wall of the exhibit. O’Keeffe estimates the value of the painting at the time of the

alleged theft to have been about $150.

About two weeks later, O’Keeffe noticed that two other paintings, Seaweed and Fragments,

were missing from a storage room at An American Place. She did not tell anyone, even Stieglitz,

about the missing paintings, since she did not want to upset him.

Before the date when O’Keeffe discovered the disappearance of Seaweed, she had already

sold it (apparently for a string of amber beads) to a Mrs. Weiner, now deceased. Following the grant

of the motion for summary judgment by the trial court in favor of Snyder, O’Keeffe submitted a

release from the legatees of Mrs. Weiner purportedly assigning to O’Keeffe their interest in the sale.

O’Keeffe testified on depositions that at about the same time as the disappearance of her

paintings, 12 or 13 miniature paintings by Marin also were stolen from An American Place.

According to O’Keeffe, a man named Estrick took the Marin paintings and “maybe a few other

things.” Estrick distributed the Marin paintings to members of the theater world who, when

confronted by Stieglitz, returned them. However, neither Stieglitz nor O’Keeffe confronted Estrick

with the loss of any of the O’Keeffe paintings.

There was no evidence of a break and entry at An American Place on the dates when

O’Keeffe discovered the disappearance of her paintings. Neither Stieglitz nor O’Keeffe reported

them missing to the New York Police Department or any other law enforcement agency. Apparently

the paintings were uninsured, and O’Keeffe did not seek reimbursement from an insurance

company. Similarly, neither O’Keeffe nor Stieglitz advertised the loss of the paintings in Art News

or any other publication. Nonetheless, they discussed it with associates in the art world and later

O’Keeffe mentioned the loss to the director of the Art Institute of Chicago, but she did not ask him

to do anything because “it wouldn’t have been my way.” O’Keeffe does not contend that Frank or

Snyder had actual knowledge of the alleged theft.

Stieglitz died in the summer of 1946, and O’Keeffe explains she did not pursue her efforts to

locate the paintings because she was settling his estate. In 1947, she retained the services of Doris

Bry to help settle the estate. Bry urged O’Keeffe to report the loss of the paintings, but O’Keeffe

declined because “they never got anything back by reporting it.” Finally, in 1972, O’Keeffe

authorized Bry to report the theft to the Art Dealers Association of America, Inc., which maintains

for its members a registry of stolen paintings. The record does not indicate whether such a registry

existed at the time the paintings disappeared.

In September, 1975, O’Keeffe learned that the paintings were in the Andrew Crispo Gallery

in New York on consignment from Bernard Danenberg Galleries. On February 11, 1976, O’Keeffe

discovered that Ulrich A. Frank had sold the paintings to Barry Snyder, d/b/a Princeton Gallery of

Fine Art. She demanded their return and, following Snyder’s refusal, instituted this action for

replevin.

Frank traces his possession of the paintings to his father, Dr. Frank, who died in 1968. He

claims there is a family relationship by marriage between his family and the Stieglitz family, a

contention that O’Keeffe disputes. Frank does not know how his father acquired the paintings, but

he recalls seeing them in his father’s apartment in New Hampshire as early as 1941-1943, a period

that precedes the alleged theft. Consequently, Frank’s factual contentions are inconsistent with

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O’Keeffe’s allegation of theft. Until 1965, Dr. Frank occasionally lent the paintings to Ulrich Frank.

In 1965, Dr. and Mrs. Frank formally gave the paintings to Ulrich Frank, who kept them in his

residences in Yardley, Pennsylvania and Princeton, New Jersey. In 1968, he exhibited anonymously

Cliffs and Fragments in a one day art show in the Jewish Community Center in Trenton. All of these

events precede O’Keeffe’s listing of the paintings as stolen with the Art Dealers Association of

America, Inc. in 1972.

Frank claims continuous possession of the paintings through his father for over thirty years

and admits selling the paintings to Snyder. Snyder and Frank do not trace their provenance, or

history of possession of the paintings, back to O’Keeffe.

As indicated, Snyder moved for summary judgment on the theory that O’Keeffe’s action was

barred by the statute of limitations and title had vested in Frank by adverse possession. For purposes

of his motion, Snyder conceded that the paintings had been stolen. On her cross motion, O’Keeffe

urged that the paintings were stolen, the statute of limitations had not run, and title to the paintings

remained in her.

II

[The Court held that there were disputed issues of material fact regarding, among other

things, whether the paintings were stolen. The case was, therefore, remanded for trial.]

III

On the limited record before us, we cannot determine now who has title to the paintings.

That determination will depend on the evidence adduced at trial. Nonetheless, we believe it may aid

the trial court and the parties to resolve questions of law that may become relevant at trial.

Our decision begins with the principle that, generally speaking, if the paintings were stolen,

the thief acquired no title and could not transfer good title to others regardless of their good faith

and ignorance of the theft. Proof of theft would advance O’Keeffe’s right to possession of the

paintings absent other considerations such as expiration of the statute of limitations.

Another issue that may become relevant at trial is whether Frank or his father acquired a

“voidable title” to the paintings under N.J.S.A. 12A:2-403(1). That section, part of the Uniform

Commercial Code (U.C.C.), does not change the basic principle that a mere possessor cannot

transfer good title. Nonetheless, the U.C.C. permits a person with voidable title to transfer good title

to a good faith purchaser for value in certain circumstances. N.J.S.A. 12A:2-403(1). If the facts

developed at trial merit application of that section, then Frank may have transferred good title to

Snyder, thereby providing a defense to O’Keeffe’s action. No party on this appeal has urged factual

or legal contentions concerning the applicability of the U.C.C. Consequently, a more complete

discussion of the U.C.C. would be premature, particularly in light of our decision to remand the

matter for trial.

On this appeal, the critical legal question is when O’Keeffe’s cause of action accrued. The

fulcrum on which the outcome turns is the statute of limitations in N.J.S.A. 2A:14-1, which provides

that an action for replevin of goods or chattels must be commenced within six years after the accrual

of the cause of action.

The trial court found that O’Keeffe’s cause of action accrued on the date of the alleged theft,