In this case the Court is asked to decide the right of possession as between the plaintiffs, the Autocephalous Greek-Orthodox Church of Cyprus (“Church of Cyprus”) and the Republic of Cyprus, and the defendants, Peg Goldberg (“Goldberg”) and Goldberg & Feldman Fine Arts, Inc., of four Byzantine mosaics created in the early sixth century. The mosaics, made of small chips of colored glass, were originally affixed to and for centuries remained in a church in Cyprus, a small island in the Mediterranean. In 1974, Turkish military forces invaded Cyprus and seized control of northern Cyprus, including the region where the church is located. At some point in the latter 1970s, during the Turkish military occupation of northern Cyprus, the mosaics were removed from their hallowed sanctuary. The plaintiffs claim that the Church of Cyprus has never intended to relinquish ownership of the mosaics, that
|[ 717 F.Supp. 1376 ]|
the mosaics were improperly removed without the authorization of the Church or the Republic of Cyprus, and that the mosaics should be returned to the Church. The defendants, on the other hand, claim that export of the mosaics was authorized by Turkish Cypriot officials, and that in any event Goldberg should be awarded the mosaics because she purchased them in good faith and without information or reasonable notice that they were stolen. Having heard and reviewed all the evidence in the case, the Court concludes that possession of the mosaics must be awarded to the plaintiff, the Autocephalous Greek-Orthodox Church of Cyprus.
|[ 717 F.Supp. 1377 ]|
On May 24, 1989, the Turkish Republic of Northern Cyprus (“TRNC”) filed a “Motion to Intervene as Plaintiff.” A hearing on TRNC’s motion to intervene was held by this Court on May 30, 1989. By order dated May 30, 1989, this Court denied TRNC’s motion to intervene and also denied TRNC’s motion to stay the trial (which was scheduled to start that same day) pending appeal of the denial to intervene.
The original Kanakaria mosaic depicted Jesus as a young boy seated in the lap of his mother, the Virgin Mary, who sat on a throne surrounded by a mandorla of light. The figures of Jesus and the Virgin Mary were bordered on each side by depictions of two archangels. This central composition was in turn bordered by a frieze containing
|[ 717 F.Supp. 1378 ]|
the busts of the twelve apostles. The original mosaic was made of small pieces of colored glass referred to in the art world as tesserae.
The Kanakaria Church is located in the village of Lythrankomi, which is in an area of northern Cyprus now under Turkish military occupation. After the 1974 invasion, the Greek Cypriot population of Lythrankomi was “enclaved” by Turkish military forces. During this time the Greek Cypriots were denied many basic human rights, including freedom of movement, medical care, and the ability to earn a living. Many men from the village were arrested and
|[ 717 F.Supp. 1379 ]|
detained in Turkish jails; there they received severe beatings by Turkish soldiers.
As previously noted, since the Turkish invasion in 1974, the Republic of Cyprus has learned of the theft or destruction of
|[ 717 F.Supp. 1380 ]|
much cultural property in Cyprus. Many churches, museums, and private collections have been looted, and other property has suffered destruction or loss. In some instances visitors who were allowed access to the occupied area would note such losses and report them to the Republic of Cyprus. It was through one such visitor that the Department of Antiquities first learned in November 1979 that the mosaics of the Kanakaria Church were missing. The Department is charged with the responsibility, among other things, of protecting church property which is either an antiquity or a national monument. The mosaics fall under this responsibility. Therefore, the Republic of Cyprus decided to seek recovery of the mosaics.
|[ 717 F.Supp. 1381 ]|
E. The Mosaics Resurface
At the July 1st meeting in Amsterdam, Goldberg knew that Faulk and Dikman had met earlier to discuss the sale of the mosaics.
|[ 717 F.Supp. 1382 ]|
Goldberg asked Faulk to travel to Munich to inform the seller of her interest in purchasing the mosaics. At Goldberg’s direction, Faulk met with Dikman on July 1st and 2nd. Faulk was shown documents that Dikman claimed were proof that the mosaics had been exported properly from northern Cyprus. Faulk returned to Amsterdam on July 2nd and reported to Goldberg that, in his opinion, the export documents appeared to be in order. At trial, the defendants offered Exhibits 702, 3015, and 3016, as support for their contention that Goldberg reasonably believed the mosaics had been properly exported. None of these documents, however, even mentions Dikman or the four mosaics at issue in this case.
In Amsterdam, while contemplating the purchase of the Kanakaria mosaics, Goldberg knew she would have to borrow a substantial amount of money if she were to purchase the mosaics. She called Frenzel at his home to discuss possible financing from Merchants. Frenzel indicated that if Goldberg were certain about the propriety of purchasing the mosaics, he would attempt to arrange a loan for her. Frenzel
|[ 717 F.Supp. 1383 ]|
referred her loan request to Timothy Massey, Vice President of the Professional Banking Department. Frenzel testified that he can recommend individuals for loans by volunteering to a loan officer his impressions of an individual’s background, what he might know about a person, and what a person’s expertise might be. Frenzel told Massey that Frenzel thought that Goldberg was a very bright individual with regard to art, that she was credible, and that she had a great deal of expertise. Frenzel also indicated to Massey that he, Frenzel, was comfortable with Goldberg.
Goldberg returned to Indiana with the four mosaics and with approximately $70,000 of the $120,000 she kept from the Merchants loan. In Europe she spent approximately $50,000 on conversion charges, shipping and insurance, and the purchase of four paintings and a small piece of art in The Netherlands. Goldberg testified that she deposited the remaining $70,000 in several of her bank accounts in Indiana. Exhibits 2201 through 2209 show a series of deposits, each under $10,000, in various business or personal accounts of Goldberg. At some point after Goldberg returned to Indiana with the mosaics, Frenzel and another
|[ 717 F.Supp. 1384 ]|
Indiana resident, Dr. Stewart Bick, acquired interests in the resale profits of the mosaics.
|[ 717 F.Supp. 1385 ]|
The plaintiffs and their attorneys eventually learned that the mosaics were in Goldberg’s possession in Indianapolis. The plaintiffs wrote to Goldberg requesting the return of the mosaics. Upon the defendants’ refusal, the plaintiffs instructed their attorneys to file suit to recover the mosaics.
Shideler v. Dwyer, 275 Ind. 270, 417 N.E.2d 281, 283 (1981). Further, the
|[ 717 F.Supp. 1386 ]|
Indiana court of appeals has ruled that “statutes of limitations are favored by the courts…. [t]hey are statutes of repose, founded upon a rule of necessity and convenience and the well-being of society.” Spoljanic v. Pangan,466 N.E.2d 37, 43 (Ind.App.1984) (citations omitted). These cases indicate that Indiana follows the policies reflected in statutes of limitation. Accord, O’Keeffe v. Snyder,83 N.J. 478, 416 A.2d 862, 868 (1980) (“The purpose of a statute of limitations is to `stimulate to activity and punish negligence’ and `promote repose by giving security and stability to human affairs,'”) (quoting Wood v. Carpenter,101 U.S. 135, 139, 25 L.Ed. 807, 808 (1879)).
|[ 717 F.Supp. 1387 ]|
Many jurisdictions have responded to the problems presented by this type of case by adopting a “discovery rule.” The discovery rule provides that the statute of limitations in this type of cause runs from the date the negligence was or should have been discovered. The rule is based on the reasoning that it is inconsistent with our system of jurisprudence to require a claimant to bring his cause of action in a limited period in which, even with due diligence, he could not be aware a cause of action exists.
If the fraud, although not discovered, ought to have been discovered, and could have been if reasonable diligence had been exercised by the plaintiff, the statute will run from the time discovery
|[ 717 F.Supp. 1388 ]|
ought to have been made. To prevent the the barring of an action, it must appear that the fraud not only was not discovered, but could not have been discovered with reasonable diligence, until within the statutory period before the action was begun.
Similarly, this Court is persuaded that the discovery rule should apply to this case.
|[ 717 F.Supp. 1389 ]|
The discovery rule prevents the statute from beginning to run in situations where a plaintiff, using due diligence, cannot bring suit because he is unable to determine a cause of action. In a replevin action, a plaintiff sues a defendant for the recovery of specific property. An element of the cause of action is the defendant’s wrongful detaining or wrongful possession of the property sought to be recovered. In order to maintain a replevin action, the plaintiff must know who is in possession of the property at issue. If a plaintiff is unable to determine the possessor of stolen items, the plaintiff cannot maintain a cause of action in replevin.
A June 10, 1982 article in the Turkish publication Ortam contained the headline “Antique Smuggler, Aydin Dikmen, [sic] Allegedly to Deposit Money in the Bank Account of a Judge.” Exhibit 2174. The article reported that Dikman was wanted for smuggling antique artifacts, that he was arrested and released shortly thereafter, and that Dikman’s wife had allegedly deposited a large sum of money in the bank account of a judge. Id.The single paragraph of the article discussing Dikman linked him by implication to the theft of church icons from the Girne Castle museum. The majority of the article discussed the loss of cultural property from churches
|[ 717 F.Supp. 1390 ]|
and museums in general on the island of Cyprus. The last section of the article discussed the mosaics missing from the Kanakaria Church. The article contained two pictures, each of portions of the Kanakaria mosaic. Id. Papageorghiou testified that the article did not make any connection between the mosaics and Aydin Dikman. Tr. 173. When Cyprus was made aware of Turkish press reports of missing Cypriot antiquities, it repeated its systematic steps of notification such as contacting UNESCO and sending out press releases. Tr. 193-94; Leventis Deposition 82. The Court concludes that Cyprus took reasonable steps upon learning of such information. The Court further concludes that nothing in the Turkish press did or reasonably should have put the Republic of Cyprus on notice that the mosaics were or could have been in Dikman’s possession.
Throughout this series of events, officials of the Republic of Cyprus questioned
|[ 717 F.Supp. 1391 ]|
Petsopoulos and Menil Foundation officials about who was in possession of the frescoes and mosaics, but no one would reveal such information. Leventis Deposition 48-49, 53; Tr. 207; Hopps Deposition 141-42, 163. Ambassador Leventis questioned on several occasions whether the individual from whom the mosaics were recovered possessed any additional pieces of the mosaic, and he was always told no. Leventis Deposition 51, 52, 54. Hopps himself did not believe that Dikman possessed any additional parts of the mosaic. Hopps Deposition 149.
Assuming, arguendo, that the discovery rule does not apply under the facts of this case, the Court concludes that the plaintiffs’ action is timely filed under the doctrine of fraudulent concealment. There is support for the proposition that a cause of action for the replevin of property accrues at the time of the theft. The O’Keeffe court held that apart from the discovery rule, the statute of limitations in replevin actions “ordinarily will run against the owner of lost or stolen property from the time of the wrongful taking….” 416 A.2d at 872.9 However the O’Keeffe court further stated that this was ordinarily true “absent fraud or concealment. Where the chattel is fraudulently concealed, the general rule is that the statute is tolled.” Id. at 872-73 (citations omitted).10Assuming for purposes of discussion that the cause of action accrued in this case when the mosaics
|[ 717 F.Supp. 1392 ]|
were stolen sometime between 1976 and 1979, the Court concludes that the doctrine of fraudulent concealment operates under the facts of this case to toll the six-year statute of limitations.11
The plaintiffs have demonstrated that the doctrine of fraudulent concealment should operate in this case.12Because the
|[ 717 F.Supp. 1393 ]|
limitations period in this case is triggered by a specified event, i.e., the theft of the mosaics, see Burks, supra, 534 N.E.2d at 1105, the Court concludes that the statute of limitations was tolled by fraudulent concealment and equitable estoppel such that the plaintiffs filed their complaint in a timely manner. Because the Court has concluded that the plaintiffs were duly diligent and that their action is timely filed, it is unnecessary to address any of the defendants’ other arguments, such as laches.
|[ 717 F.Supp. 1394 ]|
Switzerland’s lack of significant contacts is also highlighted by the fact that the mosaics never entered the Swiss stream of commerce. The mosaics were on Swiss soil no more than four days,14 during which time they remained in the free port area of the Geneva airport. The mosaics never passed through Swiss customs.
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The choice of law rules of another system may assist in certain cases a forum in determining its ultimate choice of the applicable law…. [I]t may be of interest to the forum and of help to the forum in reaching a conclusion to consider what view would be taken by the courts of another legal order if the matter were before those courts.
At every appropriate opportunity in their complaint, the plaintiffs request that possession of the mosaics be awarded to the plaintiff Church of Cyprus. Under Indiana law, replevin is the proper legal theory for the recovery of personal property. “A replevin action is a speedy statutory remedy designed to allow one to recover possession of property wrongfully held or detained as well as any damages incidental to the detention. The only issue necessarilydecided in a replevin action is the
|[ 717 F.Supp. 1396 ]|
right to present possession.” State Exchange Bank of Culver v. Teague,495 N.E.2d 262, 266 (Ind.App.1986) (emphasis in original). Indiana courts have long adhered to this theory.17 Although the mosaics were originally fixtures, attached to the apse of the Kanakaria Church, they may be replevied as long as their separate identities may be determined. A fixture severed from the real property to which it first attached becomes personal property and may be replevied. I.L.E. Fixtures § 14 (West 1959).18
In Indiana to prove a claim for replevin, a plaintiff must prove that he has title or
|[ 717 F.Supp. 1397 ]|
right to ownership, that the property has been unlawfully detained, and that the defendant is in wrongful possession of the property. Snyder v. International Harvester Credit Corp.,147 Ind.App. 364, 261 N.E.2d 71, 73 (1970) (citations omitted); I.L.E. Replevin § 42 (West 1960). The Court now applies the elements of replevin to the facts of this case.
Second, the plaintiffs must show that the items to be replevied were unlawfully or wrongfully detained. The mosaics were removed from the Kanakaria Church at some point between 1976 and 1979, during the Turkish occupation of northern Cyprus. Father Maheriotis testified that the Church of Cyprus has never authorized anyone to remove the mosaics or to sell anything from the Kanakaria Church. Tr. 261-263. Further, Father Maheriotis testified that the Church of Cyprus does not consider the Kanakaria Church to be abandoned and that, when civil conditions allow, the Church of Cyprus intends to re-establish its congregation at the Church. Papageorghiou testified that the Republic of Cyprus never granted permission to anyone to remove or export the mosaics of the Kanakaria Church. Kyprianou testified that, under the facts of this case, the Church of Cyprus has never lost title to the mosaics even though the Church has not had physical control of the Kanakaria Church since the Turkish occupation of the region. Tr. 285. He further stated that the mosaics were removed and carried away without the consent of the Republic of Cyprus. Tr. 288-89. The defendants presented no credible evidence or persuasive argument that the mosaics were removed in a manner inconsistent with the above evidence.20
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The Court concludes the following: that the Church of Cyprus has never intended to relinquish title to or possession of the mosaics; that the Church of Cyprus has never abandoned the Kanakaria Church or the mosaics; and that the mosaics were improperly removed from the church, without the authorization or permission of the Church of Cyprus or the Republic of Cyprus. For purposes of this opinion, the mosaics were stolen from the church. For these reasons, the Court concludes that the mosaics were unlawfully detained or taken from the rightful possession of the Church of Cyprus.
Under Indiana law, as outlined, a thief obtains no title to or right to possession of stolen items and can pass no title or right to possession to a subsequent purchaser.
|[ 717 F.Supp. 1399 ]|
The mosaics were stolen. For purposes of this analysis, it is of no significance whether Aydin Dikman originally stole the mosaics, or who originally stole them. Further, it matters not whether Goldberg purchased the mosaics from Dikman alone, or from Dikman, van Rijn, and Fitzgerald, or from only van Rijn and Fitzgerald. The evidence of theft and chain of possession under the facts of this case lead only to the conclusion that Goldberg came into possession of stolen property. Under Indiana law, she never obtained any title or right to possession.22 Therefore, the Court concludes that the defendants are in wrongful possession of the mosaics.
Under Indiana law, the Court concludes that the plaintiffs have made credible and persuasive showings on the elements necessary for the replevin of personal property.23The Indiana cases holding
|[ 717 F.Supp. 1400 ]|
that a thief obtains no title to stolen property recognize a long-standing rule. The cases establish law which increases in precedental value over time. As the plaintiffs have proven their case for replevin, the Court concludes that possession of the mosaics must be awarded to the plaintiff Church of Cyprus.
A. Well, yes. I mean, I knew that Cyprus had been a British colony for a number of years. I knew that the island had changed hands, or parts
|[ 717 F.Supp. 1401 ]|
of it had changed hands many times, and I did know that at least for the last 14 or 15 years the island had been divided.
Tr. 350. In addition, Goldberg met the seller, Dikman, only once.27That brief
|[ 717 F.Supp. 1402 ]|
meeting occurred on July 5, 1988, or two days before the sale was consummated. This was the only time Goldberg and Dikman ever communicated directly with each other. Finally, as previously discussed, no document such as a bill of sale or export paper links Dikman to these mosaics.
All of the foregoing sets of circumstances, especially when considered together, raise significant suspicions. For these reasons, the Court concludes that suspicious circumstances surrounded this sale sufficient to cause an honest and reasonably prudent purchaser in Goldberg’s position to doubt Dikman’s capacity to convey property rights to the mosaics. The Court cannot improve on Dr. Vikan’s summation of the suspicious circumstances surrounding this sale: “All the red flags are up, all the red lights are on, all the sirens are blaring.” Tr. 358. Because such suspicious circumstances existed, Goldberg cannot rest on the presumption, which she is afforded under Swiss law, that she purchased the mosaics in good faith. Instead, Goldberg now bears the burden of establishing her good faith. She may do so by showing that she took steps to inquire into Dikman’s capacity to convey property rights to the mosaics
|[ 717 F.Supp. 1403 ]|
and that such steps reasonably resolved any doubts as to Dikman’s capacity to convey such property rights.
A. Because the object is [from] there. I’ll use the metaphor of the smelly fish. The smelly fish is lying in front of you and it ha[s] Cyprus written on [its] side. The only way you can lift that is to get in touch
|[ 717 F.Supp. 1404 ]|
with the people who can tell you the truth.
The Court notes that damages may be awarded for the loss of the use of the property in a replevin action. Lou Leventhal Auto Co., Inc. v. Munns, 164 Ind.App. 368, 328 N.E.2d 734(1975). Before trial, the issue of damages was separated from the issue of rightful possession of the mosaics. Issues of potential damages and other counts in the plaintiffs’ complaint remain. For purposes of determining issues such as damages, remaining claims, and custody or transfer of the mosaics, the Court will address these matters as necessary
|[ 717 F.Supp. 1405 ]|
in such further proceedings as might be required.
1. The Court notes that the defendants have raised the issue of whether plaintiff the Republic of Cyprus has standing to maintain this suit. In the complaint, the plaintiff Republic of Cyprus alleges that the Republic and its citizens “have a recognized and legally cognizable interest in the four Kanakaria mosaics, and in protecting and preserving them as invaluable expressions of the cultural, religious and artistic heritage of Cyprus.” Complaint, ¶ 40. Without extended discussion, the Court concludes that plaintiff the Republic of Cyprus has a legally cognizable interest in the mosaics sufficient to confer standing. See, e.g., United States v. Students Challenging Regulatory Agency Procedures,412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).Both the Republic and the Church of Cyprus request that the mosaics be returned to the Church of Cyprus. The Court has concluded that the Church of Cyprus is entitled to possession of the mosaics. The Court need not address further the Republic of Cyprus’s standing.
2. Cyprus is not alone in suffering great losses to its cultural property during times of war. During World War II, many nations suffered such losses. In response to the widespread theft and destruction of cultural property during World War II, the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) convened an international conference at The Hague in 1954. The conference was held “for the purpose of drawing up and adopting a Convention for the Protection of Cultural Property in the Event of Armed Conflict” (“the Hague Convention”). Final Act of the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 1954. The nations participating in the conference agreed “to take all possible steps to protect cultural property” because they were “convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind …[,] that the preservation of cultural heritage is of great importance for all peoples of the world[,] and that it is important that this heritage should receive international protection.” Id.In the early 1970s, the Sixteenth General Conference of UNESCO adopted “The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” (“the UNESCO Convention”). To date, sixty-one nations have ratified the UNESCO Convention. In 1983, the United States ratified the UNESCO Convention with the passage of “The Convention on Cultural Property Implementation Act,” 19 U.S.C. § 2601 et seq. See also Executive Order No. 12555 (1986). This act provides in part:
No article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution in any State Party which is stolen from such institution after the effective date of this chapter [January 12, 1983], or after the date of entry into force of the Convention for the Party State, whichever date is later, may be imported into the United States.
19 U.S.C. § 2607.
The Hague Convention and the UNESCO Convention are not controlling in this case; however, they emphasize the importance that the United States and other countries have placed on restricting international trafficking in stolen art.
7. I.C. § 34-1-2-9 provides:If any person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation after the discovery of the cause of action.
See also Walker v. Memering,471 N.E.2d 1202, 1204 (Ind.App.1984) (by statute, concealment may extend a statute of limitations).
12. One Indiana appellate case has held that concealment of the identity of a party, as opposed to the concealment of a cause of action, does not support tolling of the statute under the doctrine of fraudulent concealment. Landers v. Evers,107 Ind.App. 347, 24 N.E.2d 796 (1940). However, the Court concludes that this case is distinguishable from the case at bar.In Landers the plaintiff was in an automobile accident. The defendant gave his name as “Harold” Evers instead of “Howard” Evers. The plaintiff sued the wrong person but did not learn this until the statute of limitations had run. In a suit against the correct defendant, plaintiff contended that the defendant fraudulently concealed his true identity from her and should be estopped from relying on the statute of limitations. The trial court disagreed and entered judgment for the defendant. The Indiana appellate court affirmed, holding that in Indiana statutory fraudulent concealment relates to the cause of action and not to the identity of the person against whom suit may be brought. 24 N.E.2d at 797.
However, the court went on to note that the plaintiff in Landers did not exercise due diligence. The court noted that the plaintiff “was in possession of the means to ascertain the proper person against whom to bring the action, if ordinary diligence had been exercised.” Id. (citations omitted). Thus the court in that case did not decide that fraudulent concealment was inapplicable as much as it decided that the plaintiff had not exercised due diligence. The court refused to apply fraudulent concealment or equitable estoppel because the plaintiff in that case was not duly diligent.
In the case at bar this Court does not believe Landers forecloses this Court’s determinations herein. As discussed above, the Court concludes that as long as the plaintiff is duly diligent, the inability to discover the possessor of the stolen mosaics invokes the doctrine of fraudulent concealment and tolls the running of the statute of limitations for replevin purposes.
13. No Indiana case discusses choice-of-law rules in the context of a replevin action. However, Hubbard and Barber are significant in that they demonstrate the Indiana supreme court’s modifications to Indiana’s traditional lex loci rule. These modifications clearly indicate Indiana’s shift to the most significant contacts analysis in choice-of-law determinations. See also Restatement (Second) of Conflict of Laws § 145 (most significant relationship analysis in torts); § 188 (most significant relationship analysis in contracts) (1971). Therefore, this Court believes that the analysis set forth in Hubbardprovides the proper analytical framework for the choice-of-law issue presented in a replevin case such as this.Further, the Court notes that conversion, a cause of action very similar to replevin, is a tort and therefore would fall under Hubbard’s most significant contacts analysis for choice-of-law purposes. The fact that conversion would be analyzed under the most significant contacts approach is further support for this Court’s decision to analyze this action for replevin under the most significant contacts approach as well.
17. “[Our] courts have long held the primary purpose of a replevin action is to recover the rightful possession of the property.” Kegerreis v. Auto-Owners Insurance Co.,484 N.E.2d 976, 982 (Ind.App.1985) (citations omitted). “Replevin is a possessory action, the gist or purpose of which is to determine the plaintiff’s right to the possession of the property which is the object of the action and which the defendant has wrongfully taken or has wrongfully retained…. The primary object is to recover the possession of the property.” Ring v. Ring,131 Ind.App. 623, 174 N.E.2d 58, 61 (1961) (citations omitted).Replevin is a possessory action. The purpose of an action in replevin is to determine who shall have possession of the property sought to be replevied. Even in causes like the cause at bar, where the plaintiff alleges that he is the owner of the property sought to be replevied and is entitled to the possession thereof, the purpose of the cause is to determine whether or not the plaintiff is entitled to the possession of the property, and it is not the purpose to determine whether the plaintiff is the owner of the property.
Meyer v. Deifenbach, 100 Ind.App. 360, 193 N.E. 693 (1935). “[T]he question of possession enters into and becomes the very gist of the action of replevin.” Beatty v. Miller, 47 Ind.App. 494, 94 N.E. 897, 898 (1911). “[I]n an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, or the value thereof in case a delivery cannot be had, and damages for the detention.” I.L.E. Replevin § 45 (West 1960).
The Court notes that Indiana provides a statutory process for replevin. See I.C. § 34-1-9.1-1 et seq. However, neither plaintiffs nor defendants have pleaded nor tried the case expressly under these provisions. The parties have tried the case with reference to causes of action for the recovery of personal property as found in Indiana case law. The Court finds it unnecessary to refer to the statutory provisions above in light of its disposition on the merits under Indiana case law.
22. As shown above, under Indiana law even a bona fide purchaser cannot acquire title to or right to possession of stolen property. Therefore, because the Court has concluded that the mosaics were stolen, there is no need to determine whether Goldberg was a bona fidepurchaser under Indiana law.The Court notes that in some situations a “middleman,” for lack of a better term, may obtain voidable title and pass good title to a bona fide purchaser for value without notice of the original ownership. One who induces the original owner by fraudulent representations to sell an item acquires voidable title to the item. A bona fide purchaser for value, without notice of the original ownership, may acquire good title to the item from the middleman. Boyer, Survey of the Law of Property, 712-15 (1981). As between the original owner whose property is stolen and the bona fide purchaser who acquires the stolen item from a thief, the law will protect the original owner, because he did nothing and evidenced no intent to part with title to his property. As between an original owner who intentionally relinquished title to his property (albeit under fraudulent circumstances) and the bona fide purchaser from a fraudulent middleman, however, the law will protect the bona fide purchaser. The original owner lost his protection, ostensibly, when he parted with title to his property.
There is some indication that Indiana follows the voidable title rule. Alexander v. Swackhamer, 4 N.E. 433, 436 (Ind.1886); Breckenridge v. McAfee, supra, 54 Ind. at 147. However, it is not necessary to apply this analysis to the facts of this case because there is absolutely no evidence that the plaintiffs ever intended to part with title to or possession of the mosaics by sale, export, fraudulent relinquishment of title, or otherwise. As a matter of law no one in the chain of possession of the mosaics ever obtained voidable title; thus Goldberg could not be a bona fide purchaser under this analysis.
23. At some points counsel have referred to this case in a conversion context. This Court notes that Indiana recognizes the tort of conversion. Indiana courts have held that the “essence of every conversion is the wrongful invasion of a right to, and absolute dominion over property owned or controlled by the person deprived thereof, or of its use and benefit … the essential elements to be proved are `an immediate, unqualified right to possession resting on a superior claim of title’…. `In actions for conversion, it is necessary for the plaintiff to show that before or at the time of the conversion, he had title, either general or special, to the property in controversy, coupled with the right of immediate possession, and that the property had been wrongfully converted by the defendant to his own use.'” Noble v. Moistner, 180 Ind.App. 414, 388 N.E.2d 620, 621 (1979). See also Indiana & Michigan Electric Co. v. Terre Haute Industries, Inc.,507 N.E.2d 588, 610 (Ind.App.1987) (elements of conversion); Howard Dodge & Sons, Inc. v. Finn, 181 Ind.App. 209, 391 N.E.2d 638, 640 (1979) (elements of conversion). The intent to convert one’s property is not an essential element. Howard Dodge & Sons, supra, 391 N.E.2d at 641; Burras v. Canal Construction and Design Co.,470 N.E.2d 1362, 1368 (Ind.App. 1984).The general rule in Indiana is that in an action for conversion, the owner does not seek return of the property, but only money damages for its value, Plymouth Fertilizer Co., Inc. v. Palmer,488 N.E.2d 1129, 1130 (Ind.App.1986), although one Indiana court has held that conversion is “cured” by the payment of damages or the return of the property, Chesterton State Bank v. Coffey,454 N.E.2d 1233, 1237 (Ind.App. 1983). Further, in Indiana actions for conversion are governed by a two-year statute of limitations. French v. Hikman Moving & Storage,400 N.E.2d 1384, 1388 (Ind.App.1980) (citation omitted). One Indiana court has noted that a two-year statute of limitation for conversion is “an anomaly” when compared to the six-year statute of limitations which applies to an action to recover personal property. Rush v. Leiter,149 Ind.App. 274, 271 N.E.2d 505, 508 (1971).
The Rush court also noted that at common law the tort of conversion had two remedies, trover, which resulted in a forced judicial sale of the property, and replevin, which resulted in recovery of the specific items. 271 N.E.2d at 508. As this Court has previously stated, possession of the mosaics is the more appropriate remedy in this case, and replevin is the more appropriate characterization of the case.
The Court notes that the elements necessary to prove conversion are very similar if not identical to those necessary to prove an action for replevin. This Court believes that under Indiana law, the cause of action for replevin stands on its own, and proof of a conversion is not a predicate to recovery in replevin. However, to the extent it may be necessary to support the decision reached herein, the Court concludes that the plaintiffs have also proven the elements of a conversion. The plaintiffs’ claim for conversion accrued when the defendants obtained possession of the mosaics in July, 1988, see Lee Tool & Mould, Ltd. v. Fort Wayne Parts, Inc.,791 F.2d 605, 608-09 (7th Cir.1986), and thus the plaintiffs’ filing of their complaint in March 1989 was properly within the two-year statute of limitations for actions for conversion.
However, the Court states expressly that any rule or conclusion of law regarding conversion notwithstanding, the Court is of the firm belief that replevin and possession of the mosaics is the more appropriate characterization of and remedy for this case.
27. Goldberg testified that on July 5, 1988, she met Faulk and Dikman in the free port area of the Geneva airport for the purpose of inspecting the mosaics. The meeting between Goldberg and Dikman was fleeting and proved uneventful, as described in the following excerpt from Goldberg’s testimony at trial:Q. What did you say to him [Dikman] and what did he say to you?
A. Well, that is about what it was. I had prepared a list of things that, if possible, to talk about. But I introduced myself and he introduced himself and we shook hands and the crates containing the mosaics were opened and he left.
Q. Did you perceive that he was—whether or not he was fluent in English?
A. I don’t think so.
Tr. 484. Attorney Faulk does not remember this meeting between Goldberg and Dikman and is not sure whether they ever met in person. Faulk Deposition 228.