An interesting conundrum

This is one of those cases that ties up both my interest in Civil War history as well as my day job. Hat tip to Charlie Knight for bringing this to my attention.

This article appeared in the February 11, 2011 edition of The Virginian-Pilot newspaper:

Williamsburg collector will fight for Civil War sword
Posted to: Military News Williamsburg – James City

By Tim McGlone
The Virginian-Pilot
© February 11, 2011

NORFOLK

Civil War artifacts collector Donald Tharpe paid $35,000 for a one-of-a-kind, Tiffany-made sword, and he’s not about to give it up easily.

Brown University in Providence, R.I., is suing Tharpe in federal court, seeking the return of the Col. Rush C. Hawkins sword. The university considers the 1863 silver-and-steel saber priceless.

At a hearing Thursday, U.S. District Judge Robert G. Doumar set a Sept. 7 trial date to settle the matter but ordered both sides to try to work it out before then. He noted that “possession is 90 percent of good title.”

“I think we’re going to be able to resolve it,” said Brown attorney Robert McFarland.

Doumar previously issued an injunction preventing any transfer of the sword. Tharpe, who lives in Williamsburg, had loaned the sword to a Newport News museum but retrieved it in December and had it placed in a secure art storage facility in Manhattan.

Tharpe’s attorney, Alan Silber of New Jersey, told the judge that Tharpe is the rightful owner because officials at Brown previously relinquished its rights and the statute of limitations has since expired. Brown, he said, found the sword with a Midwest dealer around 1991 but failed to sue for ownership then.

Tharpe bought the sword from an Illinois antiques dealer in 1992 for $35,000, Silber said.

Tracing the sword back to Brown would be difficult, Silber said. The Illinois dealer bought it from a dealer in Pennsylvania, who bought it from another dealer in Massachusetts, who has since died.

Plus, there may not be enough evidence to prove that the sword is the actual 1863 Hawkins sword, he said. There may be multiple Hawkins swords.

Silber and a Brown representative took the sword’s case to the storage center in New York on Feb. 8 to see whether it would fit. The two sides dispute whether it did.

“They believe it did, we believe it did not,” Silber said.

Tharpe and his wife were in court Thursday morning but declined to comment.

Brown has said the sword was stolen from its collection in the mid-1970s and that it maintains ownership despite several transfers since then.

The sword was a gift to Union Col. Rush C. Hawkins for his battlefield successes during the Civil War.

Hawkins, who became a general, later donated the sword and most of his art, mementos and books to Brown and housed them in the Annmary Brown Memorial at the university, which he had built in honor of his wife, the daughter of one of Brown’s founders.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com

Rush Hawkins commanded the 9th New York Infantry, also known as Hawkins’ Zouaves. The 9th New York was part of the Ninth Corps, and fought during Burnside’s North Carolina Expedition and then in the 1862 Maryland Campaign. The 9th New York made the farthest advance into the town of Sharpsburg during the September 17, 1862 Battle of Antietam, and their monument is one of my favorite monuments to grace the Antietam battlefield. He was badly wounded in North Carolina in 1862, and mustered out of service in 1863 when the regiment’s two-year term of enlistment expired. He was brevetted to brigadier general of volunteers, and was a prominent attorney in New York City. The irony of this situation would not be lost on him.

The Civil War historian and preservationist in me screams that the sword is the property of Brown University and that it needs to be returned immediately. However, the lawyer in me realizes that it’s not that simple. The sword was stolen, and then changed hands several times before Mr. Tharpe ended up with it.

Longstanding Virginia law provides that one who does not have title to goods cannot transfer title to a buyer, even a bona fide purchaser for value without notice. Thus, a thief cannot pass title to stolen goods even to an innocent purchaser who pays for the stolen goods. However, Virginia law has also recognized that a person who purchases goods from one possessing only voidable title can nevertheless receive good title to the goods purchased.

These principles have been implicitly recognized in Virginia Code § 8.2-403(1), which states, in pertinent part:

A purchaser of goods acquires all title which his transferor had or had the power to transfer…. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though

…

(d) the delivery was procured through fraud punishable as larcenous under the criminal law.

So, there are a couple of critical questions that must be answered in this lawsuit: Was Tharpe a bona fide purchaser for value without notice? Should he have known that the sword was stolen? And was the seller’s title to the sword voidable? Or was it void from the beginning?

Under the voidable-title doctrine, an individual who procures goods by larcenous conduct acquires a voidable title to the goods and therefore may pass valid title to those goods in a “transaction of purchase” to a bona fide purchaser for value without notice. Title in the thief is voidable “because the true owner is entitled to rescind the transaction and recover the goods from that individual. The right of rescission is cut off, however, by a transaction to a good faith purchaser.” Thus, once title to the goods has passed to the good-faith purchaser by a transaction of purchase, the original owner has no recourse to recover said goods.

Therefore, under the “voidable title” doctrine, it appears that Mr. Tharpe may have acquired good title to the sword, even though it was stolen–assuming he had no notice that it was stolen and acted in good faith in purchasing it. The question of what he knew and when he knew it will be absolutely critical to the outcome of this case, which may well conflict with my instincts as a preservationist and will undoubtedly cause a loud and unhappy reaction from a lot of people.

This will be an interesting case to monitor, and I will post updates as they become available.