# General Mandolin Topics > General Mandolin Discussions >  Lost and found 1916 Gibson F2 - Need input

## Alaskamando

I'm in an interesting situation and am looking to see what others think about it.  I recently purchased a 1916 Gibson F2 off Craigslist.  When I showed it to my band, our banjo player said "that mandolin does not belong to you!"  Here's why he would make this statement.

Where I live there was a local musician by the name of Dan Ison.  He was a true picking talent.  He played many instruments including the mandolin.  In fact he played the very mandolin I purchased off Craigslist.  In 2002 he left the area and his family unexpectedly and rumor has it he hocked the mandolin.  Well, he came back a couple years later with his tail between his legs and indeed no longer had the mandolin.  Sadly Dan took his life in 2008.  I had the pleasure of playing in a few groups with him over the years.
Anyway, as it turns out the mandolin was owned not by Dan but a collector here in my town and was loaned to Dan to play.  The fellow I purchased it from bought if from the pawn shop where Dan hocked it.

My banjo player says I am not the rightful owner.  Is he right? I paid good money and bought it in good faith and had no idea of it's checkered past.  I believe I own it. Am I right?  

Input appreciated.

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## jim simpson

First off, it was a banjo player who told you it doesn't belong to you, lol! Nothing in your story indicates to me that you are not the owner. You'll have to post a photo or so and let us know condition, etc. We are geeks that way.

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## Austin Bob

Interesting story. I'm not sure how a court of law would rule on this (and I am no lawyer), but I imagine that as far as the law goes, it might also differ a bit from state to state.

To me, it would all depend on the arrangement between Dan and the collector. If there was a signed agreement, then the mandolin might truly belong to him. You would go after the person you purchased it from, who in turn would need to try and recoup his losses from the pawn shop. The pawn shop would be the loser, unless they could collect from Dan's estate. 

But if all the collector did not have any documents supporting his claim, then it would be up to you how you wanted to handle it, and you've already stated your position on the matter.

Think of it this way: If someone steals your car, and I buy it in good faith from the thief, or even a second owner, it doesn't mean that it's not your car.

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woodwizard

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## Tobin

> My banjo player says I am not the rightful owner.  Is he right? I paid good money and bought it in good faith and had no idea of it's checkered past.  I believe I own it. Am I right?


Your good faith, unfortunately, does not cancel out someone else's bad faith.  This isn't to say you've done anything wrong at all.  You're one of the victims here, if this is indeed the collector's mandolin that was hocked by Dan.

You may want to get in touch with the collector who this belonged to, and see how he wants to handle it.  Surely he would understand your predicament.  But now that others know you have it, it's possible that word may get back to the collector anyway.  So you might want to get on top of this before you get a nasty surprise, say, from the police who might just take it from you as stolen property, leaving you on your own to try to recoup your losses.

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TC-in-NC

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## Dale Pauline

I wonder if the collector ever brought any charges or complaints against Dan? I worked in a pawn shop a number of years ago and every item brought in for sale or pawn was listed along with any serial number and a copy of the pawn ticket was given to the local sheriff's department weekly. If an item was found to be stolen a police officer would come down and pick up the item. The shop was the loser.

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Jim

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## jmp

I would talk to a lawyer. Hate to say it but the collector may have a claim, especially if he could show that by selling the loaned item it was "stolen"...since you've been informed of the circumstances worse case you could be charged with "Possession of stolen goods"

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Joey Anchors

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## billhay4

Interesting situation. Talk with a lawyer.
Bill

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## Marvino

Is this the mandolin?

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hank

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## Tom C

the collector may not have reported it stolen. as far as they know. dan has the instrument.

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## Jeff Mando

Interesting story.  From my years working at a vintage guitar store, sometimes these situations do happen, and sometimes they get complicated.  Legally, I think the mandolin is yours.  I agree with Dale, that if the mandolin was reported stolen, it would have shown up in a police report when the mandolin was pawned.  OTOH, the collector may never have reported it stolen or missing.  If he does not have a police report on file, then again, the mandolin is legally yours.  It would take a police report with the serial number to prove the mandolin was his, and of course, the report would have to have been filed years ago back when Dan had possession of it.  Again, this would only occur if the collector had an issue with Dan playing it, which apparently he did not.

On the OTHER other hand, it sounds like the story is legit and well-known in your area.  So, from a moral perspective (not a legal one) you might want to contact the collector and get his take on it.  Sometimes you can "undo" the deal and get your money back from the guy who you got it from, and he can get his money back from the pawn shop, etc.  Of course, you will be out a nice mandolin and whoever profited from the sale, would be out their profit (probably the guy who bought it from the pawn shop).  Even without the serial number, it is probably the only old F2 within a 1000 miles of where you live.

OR, move to another country and enjoy your mandolin!   :Wink:

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Joey Anchors

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## fentonjames

so all this happened around 2002.  it is now 2015.  statute of limitations.  it's yours.

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## FLATROCK HILL

Without knowing the laws in your state, it's pretty hard to say just who the legal owner is, or if you are technically in possession of stolen property. 

If the mandolin was truly lent to Dan by this collector, the original crime was committed when Dan presented it as his property to the pawn shop. According to your account, that happened 13 years ago.

Over the last 13 years, if the 'collector' noticed the absence of his mandolin, did he report it as stolen? If so, I believe the statute of limitations (whatever it may be, depending on the value of the instrument) would begin at the time of the police report or discovery of the crime. Or, had the collector even realized that his mandolin is missing? 
In my state, I believe that even if the original statute of limitations had run out, a new crime was committed when the mandolin changed hands via the Craigslist sale. 

I have no idea what a lawyer's advice would be in this case. 

The right thing, painful as it may be, would be to contact this 'collector' and tell him what you've told us. Maybe he'll put it on permanent loan to you. Maybe you'll be left empty handed. 

It's a tough situation all the way around. I wish you the best.

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## billhay4

I repeat, talk with an attorney. All the "legal" advice above is worth what you paid for it.
Bill

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MysTiK PiKn, 

Timbofood

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## Jackgaryk

"Let Your Conscience Be Your Guide"

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Denman John

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## barney 59

If indeed this is the collectors mandolin---the banjo player may be wrong about that,it might just be a lookalike. If the collector has any documentation such as he has the serial number or whatever then morally the mandolin is his,in my opinion. If it had been mine and I came across it ,no matter how much time had passed, I would consider it still mine! I'd bet you would too!  Legally? I don't know, but my guess is it is his. I have a friend that purchased a '58 Les Paul in what seemed like a legitimate transaction. My friend put it up on ebay and within a day or two the police showed up at his door. It was stolen in Michigan(my friend is in California) more than a decade before and the owner had an ebay search going for his stolen guitar. When it showed up he recognized it immediately and called the authorities. The guitar was deemed the rightful property of the original owner. Did I mention that my friend is a lawyer?
    A great story of a guitar that was found in the bushes in Georgia. A few years later he takes it to a luthier friend to have it set up to give to his son. The luthier recognized it as a very nice classical guitar but since he didn't know know much about classical guitars he contacted some experts in NYC. He describes the guitar and the experts say "Yes we are really familiar with that guitar, it was Andre Segovia's origin Hauser that was stolen along with a BMW that belonged to a collector in Georgia a few years ago!" Needless to say the guitar ended up going back to the rightful owner!
I had my '47 Chevy pickup stolen once. A couple of years later "Son of a b..." there it was parked on the street so I just took it and everything in it when I went!

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## Tom C

> Without knowing the laws in your state, it's pretty hard to say just who the legal owner is, or if you are technically in possession of stolen property. 
> 
> If the mandolin was truly lent to Dan by this collector, the original crime was committed when Dan presented it as his property to the pawn shop. According to your account, that happened 13 years ago.
> 
> Over the last 13 years, if the 'collector' noticed the absence of his mandolin, did he report it as stolen? If so, I believe the statute of limitations (whatever it may be, depending on the value of the instrument) would begin at the time of the police report or discovery of the crime. Or, had the collector even realized that his mandolin is missing? 
> In my state, I believe that even if the original statute of limitations had run out, a new crime was committed when the mandolin changed hands via the Craigslist sale. 
> 
> I have no idea what a lawyer's advice would be in this case. 
> 
> ...




I do not believe there is a statute of limitations pertains to retrieving stolen property. It's about the crime.

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## Jeff Mando

> I do not believe there is a statute of limitations pertains to retrieving stolen property. It's about the crime.


The police would come into the store where I worked (usually with the person who reported a guitar stolen) and if the serial number matched, the police gave the guitar to the person--end of story.  One time I remember an owner found his guitar that was stolen over 20 years ago--and the police report was still on file.  Doesn't appear to be a statute of limitations, in my experience.  OTOH, with no police report and serial number previously filed, the owner couldn't get back his guitar.  That happened a few times, also.

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## BJ O'Day

I think the statute of limitations covers prosecution. I don't know if it elapses time for trying to recover stolen property.
BJ

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## sunburst

If something is loaned and not returned, is it not stolen? If it is not _reported_ stolen, is it any less stolen? Wouldn't the owner (the one who _loaned_ the mandolin) be the rightful owner in any case? Do we give up our right to our property if we don't sign a written contract when we _loan_ it to someone? If I hand you an instrument to play (loan it to you) across a jam circle, do I need to have a signed contract specifying that it is mine and not yours? Otherwise, are you free to walk away with the instrument as your own? Take it to a pawn shop?

I'm not a lawyer, so these are more than rhetorical questions. In other words, what _does_ the law say? Would this be federal law, state law, local law?
Surely, there are legal answers to these questions as well as moral answers, and hopefully the two will agree.

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## barney 59

On the other hand  your banjo friend might not know the whole story. Maybe some arrangement happened between those guys that he doesn't know about and the thing isn't "stolen" at all!

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## Northwest Steve

Good advise from above. Contact the collector and find out for sure. If it is actually his  and there is an issue that can't be worked out you should see the advise of an attorney. If it was reported stolen did the collector have it insured and did he file a claim? If so it might be water under the bridge. 
Happened 13 years ago and one of the parties past away, seems a little muddy any way you look at it. To be you have done nothing wrong and agree that you would also be a victim if it is the same mandolin.
Good luck and hope it turns out well.

John - I had some items stolen out of my vehicle a couple of years ago. One item was a camera and was distinctive. I filed a report. I saw the same camera listed on craigslist less than a half mile from my house. I contacted s guy who took me to his friends house. I think the got an idea that something was up. Gave all the info to the police and he grilled me to prove it was mine, which I could. Never heard anything more from police???? Do something that valuable the collector needs to provide some proof that he owned that mandolin. Otherwise it would be he said he said and I think possession would be the owner.

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## JeffD

If you are going to get along and play music with these people, you may need to do more than is required by the law. Sometimes being in the right is overrated.

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Clement Barrera-Ng, 

eadg145, 

MysTiK PiKn, 

quietglow, 

Rosemary Philips

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## FLATROCK HILL

> I do not believe there is a statute of limitations pertains to retrieving stolen property. It's about the crime.


BINGO!   The pawn shop may no longer be under threat of prosecution. The current buyer and seller might be.

(My post was in response to a previous post suggesting that the statute of limitations had run out. I should have made that clear)

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## fscotte

How would you know the story behind this mandolin in the first place?

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## Clement Barrera-Ng

Jeff said what I felt needed to be said. Music circles are tight knitted wherever you go, and even in large cities like Los Angeles and San Diego it's hard not to run into the same people time and time again. I don't really see a way to resolve this satisfactorily unless all parties are happy with the outcome, no matter what the law says. I'd say take the mandolin directly to the collector and talk it over.

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## thistle3585

> Good advise from above. Contact the collector and find out for sure. If it is actually his  and there is an issue that can't be worked out you should see the advise of an attorney. If it was reported stolen did the collector have it insured and did he file a claim? If so it might be water under the bridge. 
> Happened 13 years ago and one of the parties past away, seems a little muddy any way you look at it. To be you have done nothing wrong and agree that you would also be a victim if it is the same mandolin.
> Good luck and hope it turns out well.



If insurance company paid a claim on it then it legally belongs to the insurance company unless the claimant wants to pay the company back.

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TC-in-NC

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## Eddie Sheehy

Unless there is a written document saying it was loaned then it is in a very grey area...

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## barney 59

> If you are going to get along and play music with these people, you may need to do more than is required by the law. Sometimes being in the right is overrated.


Very good point! If it WAS stolen from someone and that person is known to the musical community even if the guy can't positively prove it but he and others in the community know that it's his just the same and you decide to keep it you might end up the scum bucket that stole the mandolin in other peoples minds. Losing a bunch of money in a CraigList deal sucks but reputation.....I'd talk to the guy!

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MysTiK PiKn

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## Charles Johnson

This happened to me once. I bought a distinctive small shop builder mandolin from a local picker (who I did not know). He provided a bill of sale, ID, etc. I called the builder to get more info on the instrument  and he informed me the mandolin was on loan (for 2 years) to a "preacher" for his praise ministry, who called the builder to report both his car and the mandolin inside were stolen the previous week. That of course was not the story I was told. The "preacher" was driving the supposedly stolen car. The builder wanted the mandolin back immediately.

I gave the builder three choices: 1) pay me back the $2500 I paid the seller and I would ship it to him 2) file a police report that the mandolin was stolen and I would surrender it to the police, but I would press charges against the seller ($200 is the threshold for felony fraud in Virgina), or 3) do nothing. Do nothing is always an option.

The builder chose to do nothing as he did not want the "preacher" to go to jail. ???

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Mandobar, 

Randy Smith

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## Ivan Kelsall

The 'collector' is still the rightful owner. How many cases of stolen vehicles do we read about,where one's been stolen,sold to a dealer & thence to another private owner. When the authorities track it down,the new owner has to give it up - it was never the thief's or dealer's vehicle to sell / trade in the first place. It may very simply be that the collector has lost track of the mandolin over time,but it doesn't alter the fact of ownership - it's still his unless he waives his right to it or sells it.
  Re.Eddie's point - 'stolen directly' or loaned,it makes no difference. After the mandolin was ''illegally traded'' it became 'stolen' simply be having been part of an illegal deal,after which the 'borrower' was in no position to return the mandolin.The dealer & subsequent buyer are the real victims here. The dealer might even have to pay back the buyer's cash,because although unknown to him at the time,the mandolin wasn't his to sell, but he still took money for it.
    Most certainly an unpleasant situation,
                                                        Ivan

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## thistle3585

You can always try and get your money back and wash your hands of it.

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## JeffD

> This happened to me once. I bought a distinctive small shop builder mandolin from a local picker (who I did not know). He provided a bill of sale, ID, etc. I called the builder to get more info on the instrument  and he informed me the mandolin was on loan (for 2 years) to a "preacher" for his praise ministry, who called the builder to report both his car and the mandolin inside were stolen the previous week. That of course was not the story I was told. The "preacher" was driving the supposedly stolen car. The builder wanted the mandolin back immediately.
> 
> I gave the builder three choices: 1) pay me back the $2500 I paid the seller and I would ship it to him 2) file a police report that the mandolin was stolen and I would surrender it to the police, but I would press charges against the seller ($200 is the threshold for felony fraud in Virgina), or 3) do nothing. Do nothing is always an option.
> 
> The builder chose to do nothing as he did not want the "preacher" to go to jail. ???


I am sure there is more to this story. It sounds like the beginning of a Dashiell Hammett novel, where everyone might be lying and probably is, and the detectives job is not so much to ask questions and figure out what is going on, but to stir the pot and see who tries to cut and run first. Or maybe an Elmore Leonard novel, where in the end justice will be done, but not by the just.

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## bobby bill

In Texas (and probably all states), one who purchases stolen property from a thief, no matter how innocently, acquires no title in the property; title remains in the owner. Walker v. Caviness, 256 S.W.2d 880 (Tex.Civ.App.Texarkana 1953, no writ); See also, Shaw's D.B. & L., Inc. v. Fletcher, 580 S.W.2d 91 (Tex.Civ.App.Houston [1st Dist.] 1979, no writ). This rule places the responsibility of ascertaining true ownership on the purchaser.

The exception to the common law rule is that if an owner of property, by some act has vested the possession and right to the property apparently in the seller, he thereby estops himself from setting up a claim to the property as against the purchaser for value without notice. Willis v. S.L. Ewing Co., 348 S.W.2d 415, 417 (Tex.Civ.App.Dallas 1961, no writ). 

So there are rules and exceptions to the rule.  And I don't see enough information in this thread to be positive about the status of the mandolin.

That said, I agree with the others saying that the legal imperative takes a back seat to the moral and practical imperatives.  The moral imperative being that if it belongs to Mr. Collector, he should get it back.  The practical imperative being that if you want to keep playing without getting the stink-eye from the banjo and not looking over your shoulder for anyone else who might recognize the mandolin, you need to resolve the matter.

So I think you need reach out to Mr. Collector.  Something tells me that a person who indefinitely loans his 1916 Gibson F2 to someone will understand the predicament and treat you fairly.

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Three-Dz

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## StevieBGoode

Would you go to a lawyer for mandolin lessons?  Get a qualified legal opinion on your situation and then do what you think is right. IMHO. 

-- Steve

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## FLATROCK HILL

> ...I agree with the others saying that the legal imperative takes a back seat to the moral and practical imperatives.  The moral imperative being that if it belongs to Mr. Collector, he should get it back.  The practical imperative being that if you want to keep playing without getting the stink-eye from the banjo and not looking over your shoulder for anyone else who might recognize the mandolin, you need to resolve the matter.


+1.

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## FLATROCK HILL

> Would you go to a lawyer for mandolin lessons?  
> 
> -- Steve


 I would. 
I've met several outstanding mandolin pickers that happen to be lawyers. I'd jump at the chance to be tutored by any of them.

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## fscotte

Again, how did the OP know the story behind the mandolin?

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## Jeff Mando

> Again, how did the OP know the story behind the mandolin?


His banjo player knew the mandolin.  Read post #1

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## Bob A

> I'm in an interesting situation and am looking to see what others think about it.  I recently purchased a 1916 Gibson F2 off Craigslist.  When I showed it to my band, our banjo player said "that mandolin does not belong to you!"  Here's why he would make this statement.
> 
> Where I live there was a local musician by the name of Dan Ison.  He was a true picking talent.  He played many instruments including the mandolin.  In fact he played the very mandolin I purchased off Craigslist.  In 2002 he left the area and his family unexpectedly and rumor has it he hocked the mandolin.  Well, he came back a couple years later with his tail between his legs and indeed no longer had the mandolin.  Sadly Dan took his life in 2008.  I had the pleasure of playing in a few groups with him over the years.
> Anyway, as it turns out the mandolin was owned not by Dan but a collector here in my town and was loaned to Dan to play.  The fellow I purchased it from bought if from the pawn shop where Dan hocked it.
> 
> My banjo player says I am not the rightful owner.  Is he right? I paid good money and bought it in good faith and had no idea of it's checkered past.  I believe I own it. Am I right?  
> 
> Input appreciated.


So far, it's all hearsay and local "urban legend" stuff.

No one knows whether any arrangement was made between the collector and the guy he supposedly loaned the mandolin to, nor whether an insurance company was involved, nor who sold the mandolin to the OP, or even if it's the same mandolin that was in the story.

The trail of title is at least 13 years old. 

The current owner has committed no crime. The mandolin was purchased in good faith, or so it seems. The simplest solution would seem to go to the last known legal owner, and see if the mandolin is the one loaned, and if so, what might be done to secure title.
A lawyer will add a couple hundred dollars to the situation, and perhaps stir up some negativity. I don't know that I'd just hand over the mandolin to the collector without some assurances, and if I did, certainly the craigslist seller would have to cough up some money and info.

On the whole, it would be easier to just move to an undisclosed location, and never attempt to make contact with anyone from your former life.

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journeybear

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## Bob A

> His banjo player knew the mandolin.  Read post #1


Sure, they went to school together.  


Joe Banjo hasn't seen the mandolin in over a decade. Maybe he's right. Maybe not.

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bratsche

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## jimmy powells

I had this happen to me in 1970 with a Levin guitar. This was in Edinburgh, Scotland. I was travelling to a gig with folksinger Bill Barclay and mentioned I had just bought a  Levin guitar and Bill said he recently had his stolen but he would know it if he ever saw it as he had brass bridge pins custom made for it. Right away I said "I have your guitar Bill" as this was rare then and these were custom ones done at Ferranti. We went to the police (who actually ran a great folk club in Edinburgh) and they said I had to give the guitar to Bill under Scots law. I then contacted the guy who sold it to me and got my money back.

I then found out that in England that would not have happened. If I bought it completely in good faith then legally I should keep it and of course follow the traill back which of course is not quite the same as this situation as the person is deceased.

I think if you honestly buy in good faith and have no serious doubts, such as it being particularly cheap, then you should retain ownership.

Jimmy Powells
UK

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## hank

Alaskamando did your banjoist know the mandolin was the collectors because the serial number was the same as the collector's sales records when he purchased the mandolin or was it some distinguishing thing about this particular mandolin.  When you gave us the lead in facts you didn't qualify that the information given to you by others was thru serial number documentation.  It could be that both the banjoist and the Craigslist seller have jumped to conclusions about the identity of the mandolin. Like some other poster pointed out, their probably are not many old Gibson f2's floating around your local.  Also if both the knew of the collectors missing mandolin why didn't the Craigslist seller verify and set things straight instead of dumping it on you.  It may well be that this is not the same mandolin but if it is the craigslist seller should have told the pawn shop about this mess instead of buying the mandolin.

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## barney 59

Can you quote from memory the serial # of the instruments that you own? I can on a couple of them but then one of them is simply #110. Most I couldn't and some I haven't even written down I just realized. I doubt that the banjo guy knows the serial # of a mandolin that he did not own. With that said, one F2 looks pretty much like another F2 especially to someone that wasn't the owner in the first place. I am familiar with the flaws and scratches on the instruments that I own and could probably easily identify an instrument of mine but I couldn't positively identify anyone else's unless there was something very distinctive or customized about it. The new owner really owes it to themselves to follow through and find out the truth about this instrument. 
   This is another thought about insurance. If an instrument is insured and it's been stolen the insurance pays the value of the instrument at the time. Some years pass and the instrument is recovered but now it has appreciated in value. Can you recover the instrument by paying the insurance company what they paid you or would you have to pay current market value? I'll bet they don't even go there. I haven't seen any fine print in any insurance policy that I've had that addresses getting your thing back after they have paid a claim. It would legally belong to them and how they disposed of it would be at their discretion.

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## Alaskamando

To bring closure on this I did contact the collector. A couple of points to answers some questions that have been raised:
- no police report was ever filed
- no insurance was held or claimed
- no documentation exists that he truly was the owner at one time
- I consulted with a lawyer who advised that given the above points the mandolin was legally mine 
The collector verbally confirmed that it was the same mando and I believe him.  We have not come to an agreement as to how to proceed. One way or the other one, or both, of us will not feel like we come out whole. He's a decent man and I believe we will be able to work it out. Thank you everyone for your insight and advice.

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billhay4, 

GKWilson, 

hank, 

Jim, 

Kowboy, 

Mandobar, 

markT, 

MysTiK PiKn, 

Three-Dz

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## FLATROCK HILL

Thanks Alaskamando, for stopping back with the update. (You'd be amazed at the number of times people don't show the same courtesy!)

As I said in my original response, I wish you the best.

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## MysTiK PiKn

I posted this before seeing Page2 - and the update from the OP.  I was going to delete; but I will leave it here.

Thanx for the update - I hope you can settle with him, easily, and cleanly.

================= ////


.................
Jeff had the words to say what I was feeling also.

I also am thinking, if it was "recently" purchased, return it, and get money back.  (that might not be so easy either, depending).

There's also the chance that there are other mandos, same make and model, and they all look the same to a banjoplayer.  :Wink: 

Whatever way it goes, there's a sense of tension (like a curse) that's associated with this mando, unless it's cleaned up - and none of it is guaranteed to be easy.  I would try to back out of the deal I made with whoever sold it to me.  (that's about my money and the chance of losing all of the above).

Some pretty desperate stuff here.  Potentially dangerous - it depends on the people.  A legal assessment is a good idea.  Just moving to a new location?  It has a history.  And with one person gone, wow, that's pretty sad, desperate, sick, dysfunctional, and who knows what else.  ????  The immediate reaction of the banjo player means there is no containing this - unless it is cleared up, legally, and socially, and in your own mind.  

That's a lot of cleaning. but I see it as the only real way to peace of mind.  The entire trail may have to be cleaned up.  If there's one person dirty in the trail, that might be a place you don't want to go.  This could make a great movie.

edit = turning it over to legal authorities might be the way of personal safety, in many ways - there's a lot unknown here, such as "intent".

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## journeybear

Thanks for getting back to us. Left to our own devices, the speculation and conjecture can get pretty wild. We have vivid imaginations and analytical minds, a combination which can lead to far-flung  notions.  :Wink:  




> On the whole, it would be easier to just move to an undisclosed location, and never attempt to make contact with anyone from your former life.


If you decide to take this approach, I suggest moving here. It's as far as you can get from Alaska in the continental US, there's a lively music scene, and I would really like to have another decent mandolin player to jam with, particularly one with an F-2. That or an F-4 is what I'd like for my next instrument, and I'd sure like to play one now and then. Then again, I've been enjoying being the #1 mandolinist in town, not that tons of gig offers are coming my way. Hmmm ... on second thought, I don't need the competition ...  :Whistling:

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## Bernie Daniel

> To bring closure on this I did contact the collector. A couple of points to answers some questions that have been raised:
> - no police report was ever filed
> - no insurance was held or claimed
> - no documentation exists that he truly was the owner at one time
> - I consulted with a lawyer who advised that given the above points the mandolin was legally mine 
> The collector verbally confirmed that it was the same mando and I believe him.  We have not come to an agreement as to how to proceed. One way or the other one, or both, of us will not feel like we come out whole. He's a decent man and I believe we will be able to work it out. Thank you everyone for your insight and advice.


Your lawyer says it is legally yours.  His advice is presumably what you went to him for?  OK you have that advice.  IMO there was no point in asking for it if you are then going to ignore it.  Looks like it is your property.  
You are not responsible for the failure, years ago, of the collector to file a police report or an insurance claim.  That is his problem.  Maybe there were reasons why he didn't (couldn't).  Looks like all you have is his word and who knows what that is worth in this case?

I'd drop it at that and play the mandolin in good faith.  The world is not a perfect place.

----------

Jim, 

TC-in-NC

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## MysTiK PiKn

It is possible that more communication can bring an easy settlement.

It seems legally yours.  It might be a lot for the collector to swallow.  Things change with time; and it often takes time for people to process things for themselves; and hopefully, processing the situation can bring clarity.  There may still be more that is revealed through contemplation - sometimes the unknown can become known.

The steps you have taken indicate a clean motive.  What's still messy is the role of the people in the background - there is little known about their "clean motive".

I can see a good chat over a bottle of good single malt scotch.  I can also see an unlimited and unrestrained communication with a few innocent bystanders for safety.  But there is a good process of healing happening here; it needs to come to a natural end.  Note that you can't end what isn't over; but there can be an unhurried process of progress.  It's all old news that has brought two people face to face.

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## j. condino

HAAAAAAA!!!!!!!! Only a guy from Florida would suggest someone from Alaska to move there!!!!!!!!

If your writing chops are up to it, i think you may have the template for a great novel.

I  live in a small tight community where people generally try to work things out in a friendly manner. This week i had a new neighbor who did some blatant damage to my property and took out 30' of my fence while adding an addition to their house. I went over there last night to have a civil conversation about it and was greated by an absolute raving lunatic who literally chased my car down the street shouting obscenities and flipping me off for half a block while the whole neighborhood looked on with amazement...good luck with the mandolin.... :Wink:

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## journeybear

> HAAAAAAA!!!!!!!! Only a guy from Florida would suggest someone from Alaska to move there!!!!!!!!


Ha indeed!  :Grin:  I should have mentioned this would make more sense in the winter, not right now.  :Wink:  I'm thinking this would be the time of year for *me* to go up *there!*  :Laughing:

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## Ivan Kelsall

From BobA - _"The mandolin was purchased in good faith,..."_. ''Good faith'' has nothing at all to do with the laws apertaining to theft & illegal trade deals. If i stole John Reischman's Lloyd Loar & sold it to a.n.other who paid for it ''in good faith'' - who does that mandolin belong to ?. Not me & not to the new owner. It still remains the property of JR. Whether he'd 'loaned' it to me doesn't cut the mustard either. If i sell something that _does not belong to me -_ that is *theft,* & the action of selling it is an* illegal transaction*. How could it not be ?.
  In the UK we have the ''Sale of Goods Act'' which outlines in no uncertain terms _who can sell what_,& i'm pretty sure the US has exactly the same laws in place.
   The bottom line is that you can't sell somebody else's property either stolen or ''loaned'' ,because not being your legal property,you have no right in law to sell it - or indeed,give it away.
    If one of us had our car stolen,only to find it a few days later in somebody else's ownership,because the thief had sold it & the new owner had paid for it ''in good faith'' - would you accept the new owners plea of ''i bought it in good faith''  as a good reason for him to keep it ?  - I think not !. Even if you do think that's 'reasonable',how would you feel if the new owner offered you the car back for the $20,000 US he paid the thief for it. Beware ! - any truthful answers might get you banned from the Cafe for life, :Grin: 
   With regard to Jimmy Powells post # 41 read this :-
https://www.citizensadvice.org.uk/co...right-to-sell/
_"If you buy something which turns out to be stolen, you won’t own them. The general rule is that they will still belong to the original owner, even if you pay a fair price for them and didn't know that they were stolen"_
                                                                                                                                                                 Ivan :Wink:

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## Tom C

I agree with Alaksmando for trying to work it out. Who would feel right playing it knowing it's at somebody else's expense. It all goes back to Dan Ison but unfortunately he' not around so somebody is going to have to absorb the expense and it may have to be the "collector" if he wants his mando back. Sometimes it's more than the money and more about the instrument so I understand when Alaskamando says it cant end happy for all.

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## Isaac Revard

This poor mandolin, like a foster child without a real mom and dad. The way I see it is the mandolin is the victim here. What can we do to ensure it has some sort of "normal" life and upbringing? Perhaps in a players hands is best? I think listening to a banjo player in this case would be similar to taking the advice of some crooked cps worker. Tragic situation.

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## Jeff Mando

A lot of good points here.  Interesting, for sure.

Many people feel if an item was stolen a long time ago and bought and sold many times over the years that it somehow becomes "unstolen".  It doesn't.  It always remains the property of the original owner who lent it.  This differs from the old adage, "possession is nine tenths of the law" and has become the story line of great movies, like The Maltese Falcon.

People are asking where the blame should be.  It is on Dan.  When he pawned something that was not his, he stole it.  Of course, Dan is not around to face the blame.  The others who bought and sold it are victims.  The pawn shop had a right to sell it, as there was no police report stating otherwise.  The man who bought it at the pawn shop had a right to sell it on Craigslist--he probably even had a bill of sale from the pawn shop.  Alaskamando bought it from someone who felt they had clear ownership.  It gets messy at this point.

The "good" news in all of this is that the mandolin never left town!  If the pawn shop or the Craigslist guy had used eBay, the mandolin could be in Japan by now....(or anywhere, for that matter).  That would complicate things to another level. (and the mandolin probably would never return).

I think local politics should prevail.  Music is a small community.  Like I previously stated, given the population of Alaska, it is probably the ONLY 1916 Gibson F-2 in the entire state.  Even in NYC or Los Angeles, I'm guessing there might only be two or three 1916 F-2's still around in music circles.  And yes, as previously stated, somebody is going to lose money and probably lose a cool mandolin.  No winners here, really.  Good luck and best wishes.

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## fscotte

The collector is really at fault, and its his issue to work out.  I think he should have filed a stolen report the moment he realized it wasn't coming back.  For whatever reason he failed to do so - maybe he like Dan too much to do that.. but that's irrelevant.  You can't loan out an item and then expect to get it back 10 years later when you've never filed it stolen.  There's laws and then there's ethical law.  The law is clearly on the buyers side.  The item is NOT stolen.  The ethical law however falls somewhere in between.

There's good reason why the collector is at fault.  Otherwise, my grandad loaned out at least 10 Loar's way back when he was 20 years old.  I want them back.

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## Austin Bob

> The collector is really at fault, and its his issue to work out.  I think he should have filed a stolen report the moment he realized it wasn't coming back.  For whatever reason he failed to do so - maybe he like Dan too much to do that.. but that's irrelevant.  You can't loan out an item and then expect to get it back 10 years later when you've never filed it stolen.  There's laws and then there's ethical law.  The law is clearly on the buyers side.  The item is NOT stolen.  The ethical law however falls somewhere in between.
> 
> There's good reason why the collector is at fault.  Otherwise, my grandad loaned out at least 10 Loar's way back when he was 20 years old.  I want them back.



I understand your logic, but I think saying the collector is at fault is a bit strong. Negligent... yes, he did not file a police report. But  he is a victim of Dan's actions. Obviously he was a fan of Dan, and most likely did not want to get him in trouble with the law, or perhaps he was simply not aware of the consequences of not acting as soon as he knew Dan had left the area. Maybe he did not want to add any more grief to Dan's family after he learned that Dan had taken his own life.

----------

Jeff Mando, 

Three-Dz

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## jljohn

EDITED TO ADD:  I also posted this before seeing the Page 2 update from the OP, but I will leave it anyway:

The volume of legal advice given and assertions made in this thread is really quite funny, especially the legal decalarations coming from those in other countries!  I am assuming you are in a state of the United States, right?  If so, the best piece of advise you've been given is to consult a lawyer in your state.  It should only take a brief consult and maybe a short bit of research to establish whether the original owner has a claim.  My guess is that he would try to establish if you are a good faith purchaser, whether that cuts short another's interest in the mandolin, and whether there are any other relevant issues to consider.  But, you need to talk to an attorney in your state, and he will be qualified to give you the legal advice you need.  

The other questions are: First, is this even the mandolin of local lore?  If not, then there is no issue.  Second, if it is the mandolin of local lore, was it disposed of without the knowledge of or against the wishes of the then owner?  If not, again there is no issue.  So, I suppose you could let it ride and see if the original owner comes calling, or you could be proactive and go talk with the original owner.  If you decide (out of a moral compunction) to go ask him about it, I'd be savvy about it.  I wouldn't take the mando in and ask "is this yours?"  It's been a long time--he might just say "yes" and be wrong.  Instead, I'd ask him if he has a verifiable record of identifying features, like the serial number.  But that's just what I would do.  YMMV!

If it was once his, and if it was disposed of against his wishes, I see three options--(1) seek the proper outcome under the law, (2) seek a solution that you deem ethically best (I could imagine this being either "it belongs to him" or "it belongs to me"), or (3) seek a compromise.  None of us can settle this for you.  There are solid arguments to be made in favor of each position.  On the one hand, you could say that the law exists to settle these disputes, and you should follow the law.  On another hand, you could look at it as if ownership is absolute until given up or legitimately taken, and since the mando was stolen, it is still the property of the original owner.  Finally, you could look at transactions from a systemic and pragmatic perspective and argue that if the marketplace is to operate efficiently, people need to be able to be secure in owning what they buy in good faith (i.e. without any knowledge or suspicion that it is stolen).  Under this thinking the recourse of the original owner would be only against the thief or any who purchased in bad faith.  In other words, the mando is yours now.  Only you can settle this quasi-moral question.

Best of luck with all of this, and keep us posted!

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## jljohn

> A lot of good points here.  Interesting, for sure.
> 
> Many people feel if an item was stolen a long time ago and bought and sold many times over the years that it somehow becomes "unstolen".  It doesn't.  It always remains the property of the original owner who lent it.


If you actually believe this, what do you propose that we do with the majority of the land "owned" in the U.S.?  I know that this notion sounds good, but it's strict application would yield ridiculous results.  There has to be cutting-off point somewhere or all ownership would be highly suspect!  The contents of most major museums would be plundered, all land ownership would be called into question, and then you would get the really hard questions like, if an item you bought was built with stolen (i.e. slave or underpaid) labor isn't at least a portion of its existence the rightful property of it's maker from whom labor was stolen?  In my opinion, your proposed bright-line rule cannot function in this imperfect and complicated world.

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## barney 59

> If you actually believe this, what do you propose that we do with the majority of the land "owned" in the U.S.?  I know that this notion sounds good, but it's strict application would yield ridiculous results.  There has to be cutting-off point somewhere or all ownership would be highly suspect!  The contents of most major museums would be plundered, all land ownership would be called into question, and then you would get the really hard questions like, if an item you bought was built with stolen (i.e. slave or underpaid) labor isn't at least a portion of its existence the rightful property of it's maker from whom labor was stolen?  In my opinion, your proposed bright-line rule cannot function in this imperfect and complicated world.


Museums seem to have been able to skirt this situation. Museums are loaded with stolen art and antiquities. The Elgin Marbles come to mind. People and countries want their stuff back and can't get it or get compensation or maybe get "compensation" of some sort when really all they want is it! The OP has communicated with the man who lent it. It seems that everyone involved believes this to be THE mandolin so there is no reason to question that. Both parties define as to what happened to this mandolin a series of events that add up to one result--It was stolen!  So whether there is hard legal paperwork that this belongs to the collector or not all parties know the actual truth of the matter. People lose out in court all the time because of technicalities when they really are in the right morally and ethically. Personally I believe this mandolin belongs to the collector just like I think the Elgin Marbles belong to Greece. As people we can decide to do what is right or if we have the ability, hide behind the "Law". It's a moral choice but no matter what one lawyer says if it were to go that way my bet that the one that walks away with the mandolin is the one with the better lawyer or that is willing to spend the most money to get or keep the thing!
   I might add that from all appearances it seems that the OP is attempting to work this out in a proper way. Hopefully he doesn't take too much of a hit!

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## jljohn

> Museums seem to have been able to skirt this situation. Museums are loaded with stolen art and antiquities. The Elgin Marbles come to mind. People and countries want their stuff back and can't get it or get compensation or maybe get "compensation" of some sort when really all they want is it! The OP has communicated with the man who lent it. It seems that everyone involved believes this to be THE mandolin so there is no reason to question that. Both parties define as to what happened to this mandolin a series of events that add up to one result--It was stolen!  So whether there is hard legal paperwork that this belongs to the collector or not all parties know the actual truth of the matter. People lose out in court all the time because of technicalities when they really are in the right morally and ethically. Personally I believe this mandolin belongs to the collector just like I think the Elgin Marbles belong to Greece. As people we can decide to do what is right or if we have the ability, hide behind the "Law". It's a moral choice but no matter what one lawyer says if it were to go that way my bet that the one that walks away with the mandolin is the one with the better lawyer or that is willing to spend the most money to get or keep the thing!
>    I might add that from all appearances it seems that the OP is attempting to work this out in a proper way. Hopefully he doesn't take too much of a hit!


Agreed.  I think that there are some clear cases (the Elgin Marbles come to mind), and I agree that the OP is handling this in an admirable manner.  I was only questioning the blanket and generalized assertion that a stolen item will always and forever belong to the one it was stolen from.  That sort of unqualified dictum can yield some bizarre results.  In this case, kudos to the OP for seeking a right and fair resolution for all parties.  

OP--have you considered looping the craigslist seller and the pawnshop owner into any potential resolution, if they are willing?  Maybe all four of you would be willing to split the loss in some way that lessens the blow to the victim of the theft and to the fellow holding the hot potato (i.e. you).  Especially since it sounds like craigslist seller got 10 or more years of use out of it, it might be nice if he could participate.

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## BJ O'Day

> This poor mandolin, like a foster child without a real mom and dad. The way I see it is the mandolin is the victim here. What can we do to ensure it has some sort of "normal" life and upbringing? Perhaps in a players hands is best? I think listening to a banjo player in this case would be similar to taking the advice of some crooked cps worker. Tragic situation.


By god you're right. I'll "Adopt" this mandolin and give it a good home.
BJ

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## Jeff Mando

point already made by someone else

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## Ivan Kelsall

From jljohn - _"Only you can settle this quasi-moral question."_. Since when have theft & illegal transactions in disposing of other people's property been ''quasi-moral'' ?. They're ILLEGAL !,
                                                                             Ivan

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## stevedenver

bobby bills info is the same as colo. law.
i understand your lawyers rationale, but i also think based on striking an accord with collector, there is obviously doubt.
failure to file is not , imho, an estopple.

if collector takes no action now, that may change.

based on your op, 


you own stolen property.
there is no statute of limitations.
without more info, loan items don't morph into ownership

its really in the collectors hands, and what he says. 
(unless of course there are more 'maybes')

while you are likely to be able away with continued possession / ownership
either because it is isn't worth it to the collector to pursue, or, some thing else.....

this has been an assumption that many have made, to thier detriment.
posting here.....honest but not so good for your "good faith" position.
your notifying Collector, that changes everything.

i have been in a similar situation, and i am certain of what i say, at least under colorado law.

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## Phil Goodson

All good points above.   The conscience must guide.

But, since it hasn't been mentioned, I'd also ask if the collector happened to deduct the loss on his income tax that year.  Although there might actually be (3 years maybe?) a statute of limitations on correcting tax records, it might give the collector a more comfortable way out if he recalls that he has gained some benefit from the loss.

Just a random thought. :Confused:   :Smile:

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## jljohn

> From jljohn - _"Only you can settle this quasi-moral question."_. Since when have theft & illegal transactions in disposing of other people's property been ''quasi-moral'' ?. They're ILLEGAL !,
>                                                                              Ivan


Ivan,

Are you a licensed attorney in the state of the OP?  Your profile indicates that you are in England, so I am guessing not.  You are really trying to make a moral statement and assuming that the your view of the moral outline of this situation is mirrored by the law.  The OP consulted an attorney, and the attorney did what he is paid to do--assess the known facts and give advice under the law.  The advice is that, under the law, the mandolin belongs to the OP.  Apparently, under the law of the state in which the OP resides, the law allows once stolen property to become lawfully someone else's, leaving the original owner only monetary redress against the thief.  (FWIW, I don't think your stolen automobile example above is a good case study, because the transfer of an automobile requires a signed sheet of paper.  If you buy a car by paying cash and walking away without the legal documents of ownership, I don't see how you could be acting in good faith.  Whereas, buying an instrument from a private seller who owned it for more than a decade and has purchase documents from a business seems like good faith to me.)  I don't know how the attorney reached that conclusion.  There may also be other issues in play here.  

Let's not forget that significant time has passed, elevating the importance of other significant questions.  One of the two key people is dead, and the only one alive stands only to gain from this situation, so his word is automatically suspect.  He may have told Dan, "Shucks, just keep it.  It's yours."  Dan may have paid him $100 bucks for it.  I can imagine any number of situations.  We don't know, and local legend and scuttlebutt is worthless in establishing what actually happened.  A reasonable person who suffered the loss of a, what, $4,000??? mandolin via theft would do something--file a police report (although he might skip this if he wanted spare Dan's family), deduct it on his taxes as a theft loss, mentioned it in an email to his sister, etc.  The point is, he should have done something if he hoped to get it back.  If there is nothing anywhere from 13 years ago that indicates that this was an actual theft, it raises substantial suspicion that it wasn't a clear theft.

My point is that this is a difficult situation for the OP.  He wants to believe the collector--who wouldn't; we all want to believe each other.  And he wants the collector to be made as whole as can be without taking the entire hit himself.  Kuddos to him on that.  Under the law, according our only authorized source (the OP's attorney), the mandolin belongs to the OP.  So, given the mix of moral compunction in play and the possibility that the collector for file suit to recover the mandolin, the question of how to move forward is a quasi-moral/quasi-legal/quasi-pragmatic question.  It bears elements of all three, and it cannot be reduced to the simple principle you have asserted.

----------

Austin Bob

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## FLATROCK HILL

> Ivan,...the question of how to move forward is a quasi-moral/quasi-legal/quasi-pragmatic question...


...all we'd need is for one of the involved parties to live in a bell tower...

----------

Austin Bob, 

Bill Snyder, 

bratsche

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## jljohn

> ...all we'd need is for one of the involved parties to live in a bell tower...


Touche!   :Cool:

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## fscotte

> Ivan,
> 
> Are you a licensed attorney in the state of the OP?  Your profile indicates that you are in England, so I am guessing not.  You are really trying to make a moral statement and assuming that the your view of the moral outline of this situation is mirrored by the law.  The OP consulted an attorney, and the attorney did what he is paid to do--assess the known facts and give advice under the law.  The advice is that, under the law, the mandolin belongs to the OP.  Apparently, under the law of the state in which the OP resides, the law allows once stolen property to become lawfully someone else's, leaving the original owner only monetary redress against the thief.  (FWIW, I don't think your stolen automobile example above is a good case study, because the transfer of an automobile requires a signed sheet of paper.  If you buy a car by paying cash and walking away without the legal documents of ownership, I don't see how you could be acting in good faith.  Whereas, buying an instrument from a private seller who owned it for more than a decade and has purchase documents from a business seems like good faith to me.)  I don't know how the attorney reached that conclusion.  There may also be other issues in play here.  
> 
> Let's not forget that significant time has passed, elevating the importance of other significant questions.  One of the two key people is dead, and the only one alive stands only to gain from this situation, so his word is automatically suspect.  He may have told Dan, "Shucks, just keep it.  It's yours."  Dan may have paid him $100 bucks for it.  I can imagine any number of situations.  We don't know, and local legend and scuttlebutt is worthless in establishing what actually happened.  A reasonable person who suffered the loss of a, what, $4,000??? mandolin via theft would do something--file a police report (although he might skip this if he wanted spare Dan's family), deduct it on his taxes as a theft loss, mentioned it in an email to his sister, etc.  The point is, he should have done something if he hoped to get it back.  If there is nothing anywhere from 13 years ago that indicates that this was an actual theft, it raises substantial suspicion that it wasn't a clear theft.
> 
> My point is that this is a difficult situation for the OP.  He wants to believe the collector--who wouldn't; we all want to believe each other.  And he wants the collector to be made as whole as can be without taking the entire hit himself.  Kuddos to him on that.  Under the law, according our only authorized source (the OP's attorney), the mandolin belongs to the OP.  So, given the mix of moral compunction in play and the possibility that the collector for file suit to recover the mandolin, the question of how to move forward is a quasi-moral/quasi-legal/quasi-pragmatic question.  It bears elements of all three, and it cannot be reduced to the simple principle you have asserted.


Well said and my sentiment as well.  The more I think about the situation the more I see the OP as 100% rightful owner.

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## Spnrclf

The attorney for the collector should assert that there has been a tort known as "conversion" perpetrated by the borrower upon the collector as the original title holder, see 512 P.2d 937, Supreme Court of Alaska. Leo ROLLINS, Appellant, v. Hans M. LEIBOLD, Appellee.No. 1646. July 25, 1973 (a case about conversion of a crane). Also, that the conversion has been continued by the current possessor. He could then institute an action for replevin under Alaska Statute § 09.40.260. Claim for delivery of personal property. "In an action to recover possession of personal property, the plaintiff may, at any time after the action is commenced and before judgment, claim the immediate delivery of the property." 

Conversion is an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, resulting in the alteration of their condition, or to the exclusion of the owner's rights. 

The burden of proving that the collector holds title is on the collector. It would appear from above that he may be able to find witnesses to validate that the borrower had publicly acknowledged borrowing the mandolin from the collector. The borrower then made the "conversion" when he sold it to the pawnshop. The current bona fide purchaser is unlikely to be seen by a trial court as holding a clear title and could be viewed as continuing the conversion. The remedies open to the collector are for trover (damages) or replevin (possession).

----------

stevedenver

----------


## stevedenver

> Ivan,
> 
> Are you a licensed attorney in the state of the OP?  Your profile indicates that you are in England, so I am guessing not.  You are really trying to make a moral statement and assuming that the your view of the moral outline of this situation is mirrored by the law.  The OP consulted an attorney, and the attorney did what he is paid to do--assess the known facts and give advice under the law.  The advice is that, under the law, the mandolin belongs to the OP.  Apparently, under the law of the state in which the OP resides, the law allows once stolen property to become lawfully someone else's, leaving the original owner only monetary redress against the thief.  (FWIW, I don't think your stolen automobile example above is a good case study, because the transfer of an automobile requires a signed sheet of paper.  If you buy a car by paying cash and walking away without the legal documents of ownership, I don't see how you could be acting in good faith.  Whereas, buying an instrument from a private seller who owned it for more than a decade and has purchase documents from a business seems like good faith to me.)  I don't know how the attorney reached that conclusion.  There may also be other issues in play here.  
> 
> Let's not forget that significant time has passed, elevating the importance of other significant questions.  One of the two key people is dead, and the only one alive stands only to gain from this situation, so his word is automatically suspect.  He may have told Dan, "Shucks, just keep it.  It's yours."  Dan may have paid him $100 bucks for it.  I can imagine any number of situations.  We don't know, and local legend and scuttlebutt is worthless in establishing what actually happened.  A reasonable person who suffered the loss of a, what, $4,000??? mandolin via theft would do something--file a police report (although he might skip this if he wanted spare Dan's family), deduct it on his taxes as a theft loss, mentioned it in an email to his sister, etc.  The point is, he should have done something if he hoped to get it back.  If there is nothing anywhere from 13 years ago that indicates that this was an actual theft, it raises substantial suspicion that it wasn't a clear theft.
> 
> My point is that this is a difficult situation for the OP.  He wants to believe the collector--who wouldn't; we all want to believe each other.  And he wants the collector to be made as whole as can be without taking the entire hit himself.  Kuddos to him on that.  Under the law, according our only authorized source (the OP's attorney), the mandolin belongs to the OP.  So, given the mix of moral compunction in play and the possibility that the collector for file suit to recover the mandolin, the question of how to move forward is a quasi-moral/quasi-legal/quasi-pragmatic question.  It bears elements of all three, and it cannot be reduced to the simple principle you have asserted.


I guess I too ask are you a lawyer?

I would guess that in fact the law in every state is the same as in Colorado, even Alaska, (I have looked briefly at the criminal statute), and, once stolen always stolen, and nothing would limit restitution /damages to monetary only.  IMHO, to think otherwise (regarding monetary damages as the only recourse)  is irrational in terms of unique property. Its irrational in giving someone the incentive to steal something and hide it away, fence it, pawn it, etc.  That's why there's no statute of limitations.  

Why would the original owners word be suspect for his property?  This is, imho, simply dumb in light of OP's own statement saying he believes the OP and that the mando was his.  This whole d*&^ned thing depends on credibility.  Who's story will a judge believe.

I can think of a few things as to why no action was taken; because the lendee didn't have an estate, his whereabouts wasn't known, his death might not have been known for a year or more, etc.

I suspect that the OPs lawyer is being a smart lawyer, ie don't admit or surrender anything until you have too.  I am certain he/she has some good arguments.  I would be willing to bet too, that the lawyer didn't do one jot of investigation, other than to speak with OP, and no others, other than the Collector.  As I mention above, this changes things from OP being an accessory to being a bona fide claimant.

Might it be that the Collector, having received a call from a lawyer, or knowing one had been consulted, could be intimidated, fearing a tangle resulting well in excess of the mandos worth.... ? I think this may well be the reality.

The lack of a receipt by the Collector may make his claim more difficult, but its well established that ownership/payment is not dependent on having a receipt.  It just helps establish that payment was made. (different for auto titles, real estate and other stuff governed by statute to avoid this kind of issue).  OTOH, of all my stuff, I doubt I have any receipts after six months. 

I fully suspect, however, that what the lawyer will attempt to do is try to shift the burden of proof of ownership to the collector.  IMHO< doesn't change a thing.  Arguable, you bet. That's how lawyers make a living, regardless of the real merits. Its creating an economic stake. Who do you believe? And, a judge might well think, too bad, you were sloppy with your toys, and I have doubts, tough.


Simply, if it was loaned, as was stated, and cannot be contradicted be a dead person or anyone else as far as we know, its ownership has not changed.  No mention of abandonment, or, gift.  Certainly an argument. But the mere passage of time tolls nothing, imho. (yet many a lawnmower or snow shovel loaned to a shifty neighbor has IN FACT suffered a different fate....LOL.

im afraid I agree with Ivan's straight forward logic on this one. and short of other facts,
not one of which has been put forth, and upon which I rely, I think a judge would as well.

I don't take issue with the good faith of the OP at the time of purchase. he had no reason to believe anything else.  Just like any of us buying from the classifieds. As for title, imho, doesn't change a thing.

----------


## billhay4

This should be put to a well-deserved rest.
Bill

----------

George R. Lane, 

Timbofood

----------


## fscotte

It may be considered abandoned property by the personal property definition as well.  If you loan an item to another, then fail to keep possession of it, then it becomes abandoned, which then anyone can lay claim.  Keeping possession of a loaned item means you know the whereabouts of said item.  So the collector seems to have lost all interest in maintaining its position in space, thus he loses his claim - abandoned.    It is not a good defense to say that you didn't want to cause trouble with the borrower.  You lose your loaned items position in space, you lose your rightful claim.  Once you realize the loaned item is missing, then you have the obligation to report it lost or stolen.

----------


## Spnrclf

This mandolin is unlikely to be considered abandoned property. Abandoned property is usually personal property that was deposited with a bank in a safe deposit box, and then never claimed after the rent ran out. In Massachusetts, abandoned property then comes under the control of the State Treasurer who will seek the owner. Property that is not returned to original owners is then auctioned off. 

You have heard the phrase "caveat emptor". Anyone purchasing an instrument is wise to assure themselves in whatever fashion that the person selling the instrument has the authority to do so, either as the owner of title or as an agent for that owner. Purchasers should also document their purchases. This situation is a real eye-opener. Some bargains are not bargains at all. 

One of the questions I have is: did the Craigslist seller sell in "good faith", or had he an inkling that the mandolin's title was clouded?

----------


## Bernie Daniel

> I guess I too ask are you a lawyer?
> 
> I would guess that in fact the law in every state is the same as in Colorado, even Alaska, (I have looked briefly at the criminal statute), and, once stolen always stolen, and nothing would limit restitution /damages to monetary only.  IMHO, to think otherwise (regarding monetary damages as the only recourse)  is irrational in terms of unique property. Its irrational in giving someone the incentive to steal something and hide it away, fence it, pawn it, etc.  That's why there's no statute of limitations.  
> 
> Why would the original owners word be suspect for his property?  This is, imho, simply dumb in light of OP's own statement saying he believes the OP and that the mando was his.  This whole d*&^ned thing depends on credibility.  Who's story will a judge believe.
> 
> I can think of a few things as to why no action was taken; because the lendee didn't have an estate, his whereabouts wasn't known, his death might not have been known for a year or more, etc.
> 
> I suspect that the OPs lawyer is being a smart lawyer, ie don't admit or surrender anything until you have too.  I am certain he/she has some good arguments.  I would be willing to bet too, that the lawyer didn't do one jot of investigation, other than to speak with OP, and no others, other than the Collector.  As I mention above, this changes things from OP being an accessory to being a bona fide claimant.
> ...


Wow not to be contentious here -- but I'm afraid you have more speculations, assumptions,and suppositions in that post than Carter has liver pills!!

One thing I do know that property laws (and most laws really) certainly are NOT the same in every state. If they were the same why would lawyers have to pass the bar exam in EACH state they practice law?

All of the other points you made are just your own speculations --- are they not?  For example, you might suspect that the OP's lawyer did nothing to investigate the facts in the case.   But in fact you have no idea at all what that attorney actually did do in that regard -- do you?

I am sure we can agree that the merits of this matter are dependent on facts available -- none of those facts appeared in your post.

The only thing I don't understand is why the OP would want to open a can of worms like this on public internet forum.  I sure wouldn't choose that route but  but hey different strokes!

----------


## barney 59

I think he wanted some advise. He was in a bit of a moral dilemma. He bought a thing and it might have been expensive or expensive to him at least. He was probably all stoked on the fact that he got this really nice cool mandolin and then suddenly he was slapped with the knowledge that it might belong to someone else. Pretty simple really. He might not have anticipated that it would turn into --well--what it turned into....... I feel for the guy ,I really do!
I might add that he didn't turn this into what it became ---we did it!

----------

Bernie Daniel, 

Spnrclf

----------


## Bernie Daniel

> I think he wanted some advise. He was in a bit of a moral dilemma. He bought a thing and it might have been expensive or expensive to him at least. He was probably all stoked on the fact that he got this really nice cool mandolin and then suddenly he was slapped with the knowledge that it might belong to someone else. Pretty simple really. He might not have anticipated that it would turn into --well--what it turned into....... I feel for the guy ,I really do!
> I might add that he didn't turn this into what it became ---we did it!


Sure the collective "WE" did. But whatever could one expect?  Posting on this forum the equivalent simultaneously asking 55,000 individuals (or however many members are on the Cafe) their opinion.  

The outcome of this thread was totally predictable from the second the OP posted it.  We've all seen this movie about a thousand times.  Judging by the numbers of posts there seem to be some members who are on line 24/7/365 and they WILL comment on any topic! (and heck it is entirely their right to do so as well).

My advice to someone wants help on a matter like this would be engage an attorney --IN CONFIDENCE and then follow that advice.

----------

MysTiK PiKn, 

Spnrclf, 

Timbofood

----------


## fscotte

Well I guess without the collector here to tell his side, we don't know.  The burning question is why the collector didn't pursue his mandolin once he realized 1) Dan is gone, and 2) I've lost the whereabouts of my mandolin.

No one simply forgets they had a vintage Gibson F4 in their possession.

----------

Bernie Daniel

----------


## Bernie Daniel

> Well I guess without the collector here to tell his side, we don't know.  The burning question is why the collector didn't pursue his mandolin once he realized 1) Dan is gone, and 2) I've lost the whereabouts of my mandolin.
> 
> No one simply forgets they had a vintage Gibson F4 in their possession.


Yes exactly we need information from the "Collector", from the "pawn shop owner", from the "Craig's list seller", and from the "banjo player" before we can conclude ANYTHING. We have only the OP's side of it.

The scenario seems to be:

1) Dan borrows the F-4 from the "Collector" sometime (years?) before 2002 and he establishes a name for himself as a picker in the local music circles (presumably the collector is local too?).  

2) In 2002  Dan leaves the area (to go to where?) with the F-4 apparently still in his possession?  Did the Collector raise the issue of what happened to his F-4 then?  We don't know.  But apparently there is no police report.  Why not?

3)  Sometime  between 2002 and 2004 Dan hocks the mandolin?  Where is this pawn shop?  Somewhere nearby or somewhere near where Dan has moved?  So did Dan move the the next town or "far far away"?  We don't know.

4) The Craig's List seller apparently finds out about the F-4 at the pawn shop and buys it.  Again is the pawn shop local?  Is the Craig's List seller local?  Both the Craig's list buyer and the pawn shop must not be too far away from each other because most people buy from LOCAL pawn shops?   How long are most pawn shops obligated to keep an item before they can sell it?  Did the pawn shop owner know about Dan's passing and feel free to sell it?  Did the Craig's list seller know of Dan's passing AND that the mandolin was at the pawn show and  now available to buy?  We don't know any of this.

3) Anyway, Dan comes back to the area circa 2004 without the mandolin.  So did the "Collector" pursue the whereabouts of the mandolin with Dan in 2004?.  We don't know but certainly he should have if he still cared about the instrument?  Maybe between 2002 and 2004 Dan gave the collector payment for the instrument and that's why he did not raise the matter?  We don't know.

4) Still four years later Dan ends his own life. (meanwhile the mandolin between 2002 and 2015 is in one of two places -- the pawn shop, or it the hands of the Craig's List seller).  

5) Then in 2015 (?) the OP buys the mandolin off Craig's list and immediately the "banjo player" recognizes it as the property of the "Collector".  How is it that the OP saw this F-4 on Craig's List?  If the Craig's List seller is distant from the area isn't it pretty amazing the OP happens to see the listing and brings the F-4 back to the same area from which it came and where Dan used to pick it and where the Collector lives?  If the Craig's List seller is local why didn't he also know the story of the F-4 and that it "belonged to the Collector" Amazing coincidence? 

I am left with the opinion that there are at least four other individuals who have a side to tell about this story.  Anyway I guess this thread will go on until it is closed.   

I'll speculate on one thing here - - I'll guess the OP wished he had never posted this question?

----------


## Jeff Mando

> Then in 2015 (?) the OP buys the mandolin off Craig's list and immediately the "banjo player" recognizes it as the property of the "Collector".


That banjo player is a buzz killer!  Imagine showing up at practice with your newly acquired 1916 Gibson mandolin, wanting to show it off, and before you play the first tune, somebody tells you it is stolen.....this ol' world ain't fair sometimes!

----------


## stevedenver

> Yes exactly we need information from the "Collector", from the "pawn shop owner", from the "Craig's list seller", and from the "banjo player" before we can conclude ANYTHING. We have only the OP's side of it.
> 
> The scenario seems to be:
> 
> 1) Dan borrows the F-4 from the "Collector" sometime (years?) before 2002 and he establishes a name for himself as a picker in the local music circles (presumably the collector is local too?).  
> 
> 2) In 2002  Dan leaves the area (to go to where?) with the F-4 apparently still in his possession?  Did the Collector raise the issue of what happened to his F-4 then?  We don't know.  But apparently there is no police report.  Why not?
> 
> 3)  Sometime  between 2002 and 2004 Dan hocks the mandolin?  Where is this pawn shop?  Somewhere nearby or somewhere near where Dan has moved?  So did Dan move the the next town or "far far away"?  We don't know.
> ...


Bernie as to why each state has its own bar, mpst bars use a multi state test and only a handful as I recall include state specific knowledge.  State Bars, in general  have their own 'test' to control who is qualified to become a lawyer and officer of the court. ie adequate educational accreditation, general legal knowledge.  The also screen folks for moral character and ask often, about legal ethics.

Bernie you understand things perfectly...

In these facts, from the OP, there is no fact which supports transfer of ownership....

significantly you overlook the OPs important post, imho, that OP believes the Collector when he said the mandolin was his-the one and the same.

there is no legal obligation to make a police report for a crime, 
there is almost certainly an obligation to promptly report a loss to a carrier as _soon as it is known_, as is typical in policies

indeed failure to do so might be used as evidence of ones understanding of events, or state or mind, or as behavior inconsistent with ones interest.  maybe.

there are many reasons, which I have experienced with clients, as to why folks don't report to the police, just as in the 'preacher' example above.

and this is about stolen property, and criminal statutes, not simply 'property' rights. I would be delighted to have you show me any state where the law is different than what I have summarized.
stolen property, is defined under criminal statute in Alaska, and colo, as simply keeping stuff you know doesn't belong to you, and, preventing an owner from getting it back. 

yes this includes finding something in a parking lot, regardless of your involvement.  this is how they prosecute fences.  you don't have to steal to have stolen or having stolen property, in a technical sense, you simply need to keep stuff that's not yours. That's why I use the term. According to what we know from OP, it was loaned, and there is NOTHING that  we know which contradicts this, not buying from a pawn shop, passage of time, etc.

my post was in regard to those posting who used collectors inaction as somehow morphing into loss of ownership.  There are many possible reasons that collector has not done anything.  indeed I provided some thoughts, but they are irrelevant to change of ownership.

My response was to those stating the inaction as somehow ending collectors ownership.

I frankly, don't find anything implausible about how the OP came upon the mandolin, or how he learned of its past. 

so, assuming the OPs version/understanding of the facts is true, 
nothing more

mando loaned-(loaned, not anything else, so its not Dead Guy's to hock)
mando hocked
mando purchased

collector comes forward and confirms, truthfully
mando loaned
mando now found
mando was mine
OP agress he believes Collector was owner of this mando

*without other facts*, taking OPs understanding as truthful, which was my point, there was no change of lawful ownership 
the mando is still lawfully collector's property.

this has nothing to do with assumptions by the banjo player etc, simply if the story as recited by OP as told to him by banjo player is true 

simply, from what we do know, as fact, from the OP, the only reliable fact source in this thread,  there hasn't been anything stated that shows change of ownership.  and that was my point.

I hope this helps.

----------

Bernie Daniel

----------


## Bob A

It is an F2, not an F4.
Calling it "stolen" is a judgement in advance of the facts.
Building an incredible and contentious house of cards on the foundation of a statement by a banjo player is the sort of endeavor that gives the Internet its deserved reputation.

----------

hank, 

Jim, 

Timbofood

----------


## barney 59

I had never heard of Dan Ison before this thread. I looked him up. He was a well known and much respected singer songwriter musician in the Fairbanks area. People who could possibly have a musical career on a national level who chose to stay out of the big show and live in some backwater area are often even more respected by the local population. They can become a symbol of local pride. (No disrespect to Fairbanks but it's not a major launching spot for a musical career). There was an Alaska Public Radio tribute to him after he took his own life.The collector might have lent the mandolin to him simply because he was a fan or friend or wanted to be a friend and didn't pursue it also because he was a fan or a friend or because after he was dead maybe it felt weird. 
I lent a not often used but somewhat expensive piece of machinery to a man I knew. He died and when I needed to use it myself rather than bother the widow about it I bought another one. I don't know if we know that Dan Ison disposed of the mandolin himself before he died, someone did but that person might not have known that it was not Dan's-- they could easily mistook it as part of his estate.  Dan Ison might have eventually returned the mandolin but I doubt that returning the mandolin was high on Dan Ison's priority list at the time he contemplated suicide! I suppose my tool will show up at a yard sale or something sometime. I can understand why the collector didn't pursue the matter.

----------

Bernie Daniel, 

Timbofood

----------


## Bernie Daniel

> Bernie you understand things perfectly...
> 
> In these facts, from the OP, there is no fact which supports transfer of ownership....
> 
> significantly you overlook the OPs important post, imho, that OP believes the Collector when he said the mandolin was his-the one and the same.
> 
> there is no legal obligation to make a police report for a crime, 
> there is almost certainly an obligation to promptly report a loss to a carrier as _soon as it is known_, as is typical in policies
> 
> ...


It probably does help Steve!  :Smile:   But I'm done commenting on this thread because sooner or later it will be closed!  :Laughing: 

I hope everything turns out well for all involved.  

I think we agree that the collector does have a legal obligation to have reported the loss if it actually comes down to court decision on the matter?  Just my opinion though!

----------


## Bernie Daniel

> I had never heard of Dan Ison before this thread. I looked him up. He was a well known and much respected singer songwriter musician in the Fairbanks area. People who could possibly have a musical career on a national level who chose to stay out of the big show and live in some backwater area are often even more respected by the local population. They can become a symbol of local pride. (No disrespect to Fairbanks but it's not a major launching spot for a musical career). There was an Alaska Public Radio tribute to him after he took his own life.The collector might have lent the mandolin to him simply because he was a fan or friend or wanted to be a friend and didn't pursue it also because he was a fan or a friend or because after he was dead maybe it felt weird. 
> I lent a not often used but somewhat expensive piece of machinery to a man I knew. He died and when I needed to use it myself rather than bother the widow about it I bought another one. I don't know if we know that Dan Ison disposed of the mandolin himself before he died, someone did but that person might not have known that it was not Dan's-- they could easily mistook it as part of his estate.  Dan Ison might have eventually returned the mandolin but I doubt that returning the mandolin was high on Dan Ison's priority list at the time he contemplated suicide! I suppose my tool will show up at a yard sale or something sometime. I can understand why the collector didn't pursue the matter.


Good points!  OK NOW I'm out!  :Grin:

----------


## Spnrclf

If this had been an hypothetical question on the bar exam I took 21 years ago, I would have identified this issue as a "tort", a non-contractual civil wrong, not as a crime. Torts are a form of common law, that law based on traditional Anglo-American cases. This is a tort known as "conversion". The owner's failure to pursue his rights to the mandolin do not appear to be a bar to his pursuit of his interests in the mandolin today. Given the facts from the OP's story, the banjo player's assessment of the situation strikes me as correct. Any outcome that favors a later "good faith" purchaser over the original owner gives an incentive for more potential "bad faith" deals in the future, i.e. future conversions. I think most courts would avoid that situation. The important question is: who had title to the mandolin? If the person who pawned it did not have title to that mandolin, none of the down-stream owners obtained title to the mandolin when it passed to them. The collector may have lost possession of the mandolin, but he still owns it. If I were the collector's attorney I would pursue the matter using the Alaska case and statute cited in my post above.

----------


## Marvino

:Sleepy:

----------


## woodwizard

John Lennon's stolen Gibson J-160E guitar found and up for auction. Hmmmm? I would think this guitar would belong to the Lennon's ???

http://artsbeat.blogs.nytimes.com/20...for-sale/?_r=0

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## Spnrclf

The Hendrix estate appears to have been fairly aggressive about reclaiming stolen guitars. See: 

http://www.entlawdigest.com/2014/11/12/3492.htm

http://blog.thebluesmag.com/post/120...-stolen-guitar

http://bravewords.com/news/settlemen...ar-up-for-sale

http://www.fearnotlaw.com/wsnkb/arti...rix-12253.html

The Lennon's may not feel as strongly about this one.

----------

woodwizard

----------


## Robbie Hamlett

> HAAAAAAA!!!!!!!! Only a guy from Florida would suggest someone from Alaska to move there!!!!!!!!
> 
> If your writing chops are up to it, i think you may have the template for a great novel.
> 
> I  live in a small tight community where people generally try to work things out in a friendly manner. This week i had a new neighbor who did some blatant damage to my property and took out 30' of my fence while adding an addition to their house. I went over there last night to have a civil conversation about it and was greated by an absolute raving lunatic who literally chased my car down the street shouting obscenities and flipping me off for half a block while the whole neighborhood looked on with amazement...good luck with the mandolin....


After following this thread since the beginning, I have only one last burning question, what finally happened about your fence and the raving lunatic?   :Confused:

----------

MysTiK PiKn, 

Timbofood

----------


## Ivan Kelsall

From jljohn - _"Are you a licensed attorney in the state of the OP ?"_. Nope - i live in the UK & do i need to be an attourney (lawyer) to know that theft & illegal transactions are ILLEGAL . However,i do have a very good source of ref.i f i ever need it. My Brother in Law is a UK Barrister at Law. He specialises in courtroom advocacy & litigation,however i'm sure he's pretty clued-up on common theft,
                   Ivan

----------


## hank

Perhaps it's time to refer to post #44 and respect the OP desire for closure.

----------

Clement Barrera-Ng, 

Timbofood

----------


## DHopkins

I'm no lawyer (because my parents were married) but if the original owner knew the circumstances of his "loaning" the mandolin changed substantially and me made no effort to get his property back or at least find its whereabouts, might it be considered "abandoned?"

----------


## fscotte

There has to be an intentional abandonment for it to be considered abandoned personal property, under the legal terms of property.  I don't know if intentionally not pursuing your loaned item would fall under that definition.  I'd say it's on the line, but we don't know the collector's reasoning for not trying to track down his mandolin.  Perhaps he has been pursuing through word of mouth.  Maybe his brother picks banjo.

----------

Spnrclf

----------


## Jeff Mando

My thinking is that if the collector was an older person, like myself, sometimes 5, 10, 15 years go by without much notice.  Things from 5 years ago literally seem like 5 minutes ago, to me.  Maybe, I'm weird.  Heck, I've got instruments in the closet that have needed restringing for 15 years, that I have somehow put off doing.....does it bother me?  Nope.  Could be the collector didn't even know Dan had left town, returned or was dead....who knows?  At my age, I have a mental list of people that "I have been meaning to call" for 10 plus years and haven't got around to doing it....not at all unusual as the years click by and one day is identical to the next.  A younger person would have more a sense of immediacy in their lives and would look at this situation quite differently, I'm guessing.  Ownership might have never been an issue at all if the OP didn't approach the collector by trying to do the right thing.  The collector might have even forgotten he owned it.  But, once you open that door....

----------

Spnrclf

----------


## DHopkins

> There has to be an intentional abandonment for it to be considered abandoned personal property, under the legal terms of property.  I don't know if intentionally not pursuing your loaned item would fall under that definition.  I'd say it's on the line, but we don't know the collector's reasoning for not trying to track down his mandolin.  Perhaps he has been pursuing through word of mouth.  Maybe his brother picks banjo.


By definition, intentionally not pursuing the items would fall under the abandonment concept, especially if he didn't make any effort to at least determine the status of the item, knowing the status had substantially changed. If he could document something to the contrary, it might be a whole different ball game.

----------


## Spnrclf

I disagree. The collector is still the owner of the mandolin. Barring some other legal authority, a case or statute to the contrary, he would not under the common-law need to pursue his interest in the mandolin in any active way. Title to the mandolin still resides with the collector. 

Ivan, with all due respect, check with your brother-in-law. This is important: theft is a crime of intent. The player would have had to intend to permanently deprive the collector of his mandolin to have committed a crime. The transactions described do not describe a theft. If the player had sold the mandolin he would have gotten nearly full market value, and that would indicate his intent to steal. The player's intent was to borrow the mandolin to play. 

The player later pawned the mandolin. He used it as collateral on a loan from a pawnbroker. This was going to be a short-term loan followed by his payment of the loan and retrieval of the mandolin. Again, he did not intend to steal the mandolin. He was only using the mandolin for a short term loan. I believe this is a common practice with some performing or professional musicians. The player may well have thought that he had the authority to use the mandolin in this way. 

That is why no crime occurred. There was no theft. There are no bad guys here. Everyone, including the mandolin player was trying to do his best. But, the mandolin player was overly optimistic. Which may explain in part the seeming inaction by the collector. 

This is a conversion, which is a tort. If there was not a theft there would not be a police report or an insurance claim. The police are unlikely to even deal with this as a reported incident because it did not involve a burglary or a larceny. Collector should have been waiting for the mandolin to resurface so he could lay claim to it. After all, the small community of mandolin players in Fairbanks likely all knew about the mandolin and who was the correct owner. And the collector would not have wanted to point the finger at a friend, especially as his friend met a tragic end.

----------


## woodwizard

Yep! If the story is true the collector is the owner, He may not have possesion  but ...

----------


## stevedenver

the reason there is a potential issue of theft, respectfully, is not the dead guy, possibly. As noted he may well have intended to redeem the pawned mando.

The theft issue arises due to the fact that once the OP is put on notice that the mando may well have belonged to another and may well still, ie due to the loan of the mandolin, and OP with this knowledge, choses then to retain the mando with intent, depriving Collector, there is the element of intent.

This is why I thought OP contacting the collector was wise. It bars , likely, a claim that he colluded in retaining the property and hiding it from the owner.  imho, as I imagine his lawyer's, by disclosing his possession and ownership, he is not preventing the Collector from exercising his ability to reclaim the property through legal action.

as sagely noted above, he is in a more difficult position to deny knowledge. having subsequently contacted the Collector, he is very likely clear of any intent to deprive of property belonging to another.

There is no duty to report anything to the carrier either. It is only a contractual duty, provided one desires to make a claim.  

Having lived in Anchorage for a while, a big place in terms of Alaska, I can say, it is easy to not know what the heck is going on around you for months at a time if you're even a bit outside of town. Isolation is more the norm than one might imagine for many.

----------

Spnrclf

----------


## Spnrclf

Here is a definition of theft from FindLaw:


What is Theft?
The term theft is used widely to refer to crimes involving the taking of a person's property without their permission. But theft has a very broad legal meaning which may encompass more than one category, and multiple degrees, of crimes. Theft is often defined as the unauthorized taking of property from another with the intent to permanently deprive them of it. Within this definition lie two key elements:

1) a taking of someone else's property; and

2) the requisite intent to deprive the victim of the property permanently.

The taking element in a theft typically requires seizing possession of property that belongs to another, and may also involve removing or attempting to remove the property. However, it is the element of intent where most of the complex legal challenges typically arise in theft-related cases.

Here is a definition of conversion from Nolo Press:

Conversion
The civil wrong (tort) of wrongfully using another's personal property as if it were one's own, holding onto another's property that accidentally comes into one's hands, or purposely giving the impression that the assets of another belong to oneself. The true owner has the right to sue for the property or the value and loss of use of it. The converter can be guilty of the crime of theft.

But, as I stated above, I don't believe the player intended a theft. And the OP was a bona fide purchaser. No one here demonstrates the necessary elements of theft. If I were the attorney for the collector I would pursue the mandolin as a conversion. Tactically there should be a lower burden of proof. In civil cases that would be by "preponderance of the evidence". The burden in crimes is "beyond a reasonable doubt". And then the mandolin may not be returned to the collector as it becomes evidence. In a civil case he would have a strong chance of getting his property back. I would advise Collector to be as generous as he can afford to be in giving OP a finder's fee.

----------

stevedenver

----------


## Jim

No matter the collectors age he/she did not put much effort into trying to get their Mandolin back. The OP purchased it in good faith.  I believe the OP should be allowed to keep and play the instrument but not sell it. The collector should maintain the right to sell it and if sold the OP should get whatever they payed for it and the collector the balance. Not really fair to anyone but a solution. Soloman himself would have trouble finding a good way to solve this.

----------


## Jim

Great reason not to loan your instruments out.

----------

lflngpicker, 

Spnrclf, 

Timbofood

----------


## Ron McMillan

In summary, for those of you without the time to read the whole, hundred-plus-posts thread:

Yes it is. No it isn't. Yes it *IS*. No it is *NOT*.

----------

Drew Egerton, 

Jim, 

MysTiK PiKn, 

sunburst, 

Woodrow Wilson

----------


## lflngpicker

Ethically, it is yours.  Legally, it is yours.  The responsibility for any mixup that may have occurred is history and on poor ol' Dan.  If you feel you want to give it to someone, that would be a noble thing to do, but not your responsibility.

----------


## stevedenver

> Here is a definition of theft from FindLaw:
> 
> 
> What is Theft?
> The term theft is used widely to refer to crimes involving the taking of a person's property without their permission. But theft has a very broad legal meaning which may encompass more than one category, and multiple degrees, of crimes. Theft is often defined as the unauthorized taking of property from another with the intent to permanently deprive them of it. Within this definition lie two key elements:
> 
> 1) a taking of someone else's property; and
> 
> 2) the requisite intent to deprive the victim of the property permanently.
> ...


I assume youre a lawyer, but I disagree with your analysis of theft.
what you recite is textbook tort law. it is not how criminal stolen good statutes read. nor how civil theft statues read.

I agree with you tactically, to a point.  indeed lower bop, otoh, imagine the impact if C tells OP, im going to the police now that I know where my mando is. I think OP would be OK , but still scary for most normal folks. the cops would likely take the mando too. otoh, civil theft, if proven , will yield treble damages to collector. pretty certain that would NOT apply in these facts.

the taking part isn't an element in criminal statutes, as well as civil theft.  merely retention of property-which is the same as taking in terms of these statutes, ie the property holder  reasonably knows or should knows the property is not theirs. that is all that needs to  be proven.

conversion is indeed the civil remedy, as is civil theft. we agree Collector has these options.  he can also report it as stolen. as I recall conversion requires demand and failure to deliver property. 

heres the definition under Colorado
it is cut and pasted and names removed from a Colorado case.

BTW -this is adopted by about 30+ states as I understand, as it came from a model statute

and I include it so others can understand this isn't about shooting form the hip on ethics or what 'oughta be'

it should be an eye opener for some

The elements of civil theft (allow a private person to sue and not need the state attorney to bring a criminal action), which are identical to criminal theft are:

1. that the defendant

2. knowingly

a. exercised control over

b. anything of value

c. which was the property of Plaintiff, 

3. without authorization,

4. with the intent to permanently deprive of the use or benefit of the thing of value.





criminally, it is identical

otherwise, I mentioned, fences would never be convicted. they don't actually get the stuff, they receive it.

OP WAS a good faith purchaser, (so what) and having disclosed the whereabouts, is not preventing Collector from taking any action, as opposed to hiding the mando from what we think may be the rightful owner, given the facts we know, form OP.

so long as OP doesn't try to interfere with Collectors ability to claim his property, as he disclosed the location of the mando, he should be ok, and, with a reasonable passage of time, he will be in a great position to claim a variety of defenses estoppel, abandonment, gift,  etc.

OPs purchase in good faith is irrelevant at this point. why, because once he learned that the item belonged to another, he was exercising control and possibly without authorization, etc  .

its about now knowing about Collector, his mando, and the loan to the Dead guy


this thread has been really interesting to me, 
I seriously doubt if the shoe were on the other foot, so many would be so quick to see their missing property deemed owned by someone else simply by the passage of time.

----------

Jim, 

Spnrclf

----------


## Timbofood

This is why I do my best to:
"Neither a borrower or lender be" anymore.
I lost a boat and two outboards by being a nice guy!

----------

Spnrclf

----------


## mrmando

Too bad "theft" doesn't encompass the loss of time spent reading this thread...

----------

houseworker, 

Spnrclf

----------


## Spnrclf

[QUOTE=stevedenver;1414787]I assume youre a lawyer, but I disagree with your analysis of theft.
what you recite is textbook tort law. it is not how criminal stolen good statutes read. nor how civil theft statues read.

I agree with you tactically, to a point.  indeed lower bop, otoh, imagine the impact if C tells OP, im going to the police now that I know where my mando is. I think OP would be OK , but still scary for most normal folks. the cops would likely take the mando too. otoh, civil theft, if proven , will yield treble damages to collector. pretty certain that would NOT apply in these facts.

the taking part isn't an element in criminal statutes, as well as civil theft.  merely retention of property-which is the same as taking in terms of these statutes, ie the property holder  reasonably knows or should knows the property is not theirs. that is all that needs to  be proven.

conversion is indeed the civil remedy, as is civil theft. we agree Collector has these options.  he can also report it as stolen. as I recall conversion requires demand and failure to deliver property. 

heres the definition under Colorado
it is cut and pasted and names removed from a Colorado case.

BTW -this is adopted by about 30+ states as I understand, as it came from a model statute

and I include it so others can understand this isn't about shooting form the hip on ethics or what 'oughta be'

it should be an eye opener for some

The elements of civil theft (allow a private person to sue and not need the state attorney to bring a criminal action), which are identical to criminal theft are:

1. that the defendant

2. knowingly

a. exercised control over

b. anything of value

c. which was the property of Plaintiff, 

3. without authorization,

4. with the intent to permanently deprive of the use or benefit of the thing of value.





criminally, it is identical

otherwise, I mentioned, fences would never be convicted. they don't actually get the stuff, they receive it.

OP WAS a good faith purchaser, (so what) and having disclosed the whereabouts, is not preventing Collector from taking any action, as opposed to hiding the mando from what we think may be the rightful owner, given the facts we know, form OP.

so long as OP doesn't try to interfere with Collectors ability to claim his property, as he disclosed the location of the mando, he should be ok, and, with a reasonable passage of time, he will be in a great position to claim a variety of defenses estoppel, abandonment, gift,  etc.

OPs purchase in good faith is irrelevant at this point. why, because once he learned that the item belonged to another, he was exercising control and possibly without authorization, etc  .

its about now knowing about Collector, his mando, and the loan to the Dead guy


this thread has been really interesting to me, 
I seriously doubt if the shoe were on the other foot, so many would be so quick to see their missing property deemed owned by someone else simply by the passage of time.

The thread interests me too. My hope is that collector, and others in his situation, are reading this thread and taking notes. 

I have a JD, was licensed in PA, and have worked in legal education and government for 20+ years in NY, PA, CT, and MA. And you?

I will look at the ULA tomorrow at work to see the Civil Theft Statute you refer to. I wonder if that statute is more common in western states as a codification of the common law. 

Conversion is not the remedy; replevin is one remedy, the other is trover.

Triple damages is a hefty tool. Does the statute allow for both recovery and 3x damages? This effect would seem to operate as an incentive to dispose of the property quickly. But perhaps not as the law intends. 

If I were collector's attorney, I would offer OP a finder's fee and treat him as a hero for returning the "Lost Yukon Mandolin", and avoid stigmatizing him. Catching more flies with honey...

The bottom line: you and I agree, the collector is the legal owner and OP should surrender the mandolin.

We differ in our methods.

----------


## stevedenver

I have a JD, was licensed in PA, and have worked in legal education and government for 20+ years in NY, PA, CT, and MA. And you?



im just a tired, worn out, old, and sometimes cranky litigator, business, labor and employment  lawyer with little grey matter left after 35 years of private and corporate practice, and the scotch to cope with it all. 

and less talent on mandolin than I wish I had.

----------

Spnrclf

----------


## Spnrclf

This article addresses problems with using "Civil Theft" statutes. 

The Florida Bar Journal
March, 2003 Volume LXXVII, No. 3
Counsel Beware: Considerations Before Implementing Florida’s Civil Theft Statute
by Mark R. Osherow

----------


## Spnrclf

Ditto on the mandolin part. I will never pay bills on giving lessons there. It is however a great stress reliever, when mixed with scotch.

----------


## Spnrclf

For those of you more musically inclined, write "The Ballad of the Lost Yukon Mandolin".

----------


## lflngpicker

I had a Martin D35 stolen from my apartment in 1975.  I would assume the individual who took it and several other of my instruments and belongings was a desperate drug addict, since he also stole the beef roast out of my fridge.  I was devastated.  I was fairly certain that in order to derive funds he sold the Martin and other instruments, etc. to a pawn shop.  Of course, there wasn't the degree of ability to track instruments the way there is today, so the background checking of these guitars wasn't successful, though I reported the theft to the police.

Assuming someone bought my Martin guitar from the pawn shop, I wouldn't blame the individual who bought it for doing so.  But now that SteveDenver has explained his case, I see more clearly.  If the purchaser of my precious guitar that I spent my last dollar on and relied on to make a living would have known it were stolen and from whom, I would have expected him to return it to me.  I miss that sweet instrument to this day.  The point is that the Gibson mandolin rightfully belonged to someone else.  I stand corrected.  Interesting discussion.  But, alas, I am still looking for that D35.

----------

Spnrclf

----------


## fscotte

I don't understand the folks criticizing this thread.  It's something we may all have to deal with, a stolen or a loaned/stolen/lost instrument.  I like the discussion and enjoy seeing the opinions of other musicians/collectors.  No one is getting heated and no one is impugning/defamating the OP.

----------

Beanzy, 

FLATROCK HILL, 

Jim, 

lflngpicker, 

Spnrclf, 

stevedenver

----------


## MysTiK PiKn

I have been refraining from participation.  I think all the legal experts should also.

We simply do not know the actual facts - there's pages of speculation here, and all kinds of wonderful legaleez - and all of it with no foundation.

There's nothing known about the "relationship" between the collector and the person he thought enough of, to loan him a fine instrument.  That's the driving force that is absent in all this waste of kilobytes - unless you enjoy talking legaleez and flexing muscles based on such experience. But even there - you don't know anything. And especially, there's nothing known about the interrelationships of those directly involved - or even others not even mentioned.  That fact that someone died kinda says it all - you don't know.  There's pages of self-indulgence and self-importance - with no knowledge of what happened.  We tuned in late to the game.  Congratulations on accomplishing zero relevance.

And NO, I am not a lawyer - as if that even matters. There's nothing here you can declare "known fact".  Heresay.

Really, what were you thinking?  Adolescent chest-beating? You have no basis for your expert opinion. Thank you very little.

Go ahead - tear me apart - o yes, that will really help.  :Disbelief: 

I'm out.

----------


## FLATROCK HILL

> I don't understand the folks criticizing this thread.  It's something we may all have to deal with, a stolen or a loaned/stolen/lost instrument.  I like the discussion and enjoy seeing the opinions of other musicians/collectors.  No one is getting heated and no one is impugning/defamating the OP.


Ditto.

I've been on both ends of this equation with cars (stolen while in storage long before I was notified of that fact), motorcycles (purchased legally with an outcome much like the one being discussed here) and musical instruments (lent out and never returned and some ripped off outright).

 This thread has been an interesting discussion, at least for me.  The 'legal' opinions may not be 100% applicable to the OP's situation, but it is enlightening to hear people's thoughts on the matter, even some of the 'less-than-brilliant' ones. 

Those that consider it a waste of time are free to not waste their time.

----------

lflngpicker, 

stevedenver

----------


## mrmando

Indeed, no one impugns the OP, but there's plenty of sniping at each other by the legal "experts" here, of both the real and imaginary varieties. None of it has any bearing on the actual case ... you can't very well take a discussion thread to court with you. If you are in the OP's situation, you will have to do what the OP did: go to a flesh-and-blood attorney who practices in your jurisdiction and get an actual consultation. In terms of what good it will do the OP, all this talk is naught but windbaggery, no manner how learned the windbags might be.

----------


## FLATROCK HILL

> Indeed, no one impugns the OP, but there's plenty of sniping at each other by the legal "experts" here, of both the real and imaginary varieties. None of it has any bearing on the actual case ... you can't very well take a discussion thread to court with you. If you are in the OP's situation, you will have to do what the OP did: go to a flesh-and-blood attorney who practices in your jurisdiction and get an actual consultation. In terms of what good it will do the OP, all this talk is naught but windbaggery, no manner how learned the windbags might be.


I agree with all of that, especially the last point! 
I guess to some extent, I just enjoy the "windbaggery", both as a spectator and often as a participant.

----------

stevedenver

----------


## Spnrclf

My apologies to those of you who suffered through this thread. The question appeared to be a serious one. As lawyers, both Stevendenver and I have an obligation to explain the law to the public. There were enough legal facts of create a legal conclusion. We both agree on the outcome here, though we arrive at our conclusion from different angles. This required a couple of hours of research on my part. Parts of this discussion would actually serve as legal authority in court. If we took up too much of your time, I'm sorry.

----------

lflngpicker, 

stevedenver

----------


## barney 59

I think people have gone on a tangent here. The facts      and the only facts we know are that someone acquired an instrument that very likely belongs to or once belonged to someone else. He has contacted that person,more power to him, and they are working it out. My hope is that whenever whatever happens that the OP comes back and tells the rest of the story. I think actual legal opinions by people who are qualified to actually have one to be interesting and possibly of use without having to fork over $500! So, hey guys--- I'm trying to set up a trust and trying to do it myself......

----------

lflngpicker, 

stevedenver

----------


## Bob Clark

> As lawyers, both Stevendenver and I have an obligation to explain the law to the public.


I enjoyed the discussion and found it informative.  Had this not been the case, I simply would have stopped reading the thread.  I thank you, Spnrclf, and Stevendenver for taking the time and for keeping it interesting.

Bob

----------

FLATROCK HILL, 

Jim, 

stevedenver

----------


## stevedenver

tune in next week.........
our discussion will be.....


global warming!  LOL

----------


## journeybear

... to which all the hot air being dispensed herein has contributed substantially.  :Grin:  Well, not really, as it's being typed, not spoken, but if it were ... wow!  :Disbelief: 

Some interesting discussions here. I think I have gotten more of an appreciation of lawyers as a result, seeing just a tiny fraction of all the reading and remembering and recognizing relevance they have to do in order to practice law. 

What I don't like is when threads like these don't include the OP. Someone brings up an issue, even registers just for this purpose, and then signs off. The thread goes off into tangents fomented by guessing, speculation, conjecture, and gets to places directed by _other_ people's mindsets and agendas than what brought contributors here in the first place. At least this time the OP did ring in - just once more - to give us an update. That didn't really slow things down that much, though. I wish OPs of such threads would stay more involved and keep the discussion on point. People come to these discussions and contribute and invest themselves because of concerns for the OPs well-being. Not participating in a thread you start is somewhat irresponsible and even a bit rude.

But that's just my opinion. I could be wrong.  :Confused:   :Whistling:   :Sleepy:

----------

rfloyd

----------


## stevedenver

touché
and thanks JB



very likely OP is gone, because what op has posted here is admissible as an admission against interest
and he is likely now well counseled.

beware the internet..one's statements on it are, indeed, evidence in a court of law...(fwiw, this is why the thread had meaning to me)

retrievable and easily found, forever........yoiks. 

it is routine and inevitable that if you are involved in a legal matter, insurance, etc, one will be searched out and found.....scary huh?

'magine that!

----------


## Spnrclf

And lawyers are now combing social media sites like Facebook for evidence to bring to court in cases they have pending. 

My understanding is that thieves do the same looking for opportunities and targets to acquire. This is a new wrinkle on the old obituary/wedding announcement ploy: ransack the house while the family is at church.

----------


## Randy Linam

Regardless of what we think, or what the law states. It all depends on what the definition of "is" is. I learned that from the President of the United States, and the Chief Justice of the Supreme Court along with the Senate seemed to agree.

----------


## Jeff Mando

"Is you is or is you ain't my baby?" -Louis Jordan

I think we've brought up some good talking points here in this discussion.  I've had three guitars stolen over the years.  One, 30+ years ago, I let a friend borrow, he played in a band with me.  His van was broken into and the guitar was taken.  Guitar was in plain sight through the window.  I paid $150 for the guitar new 20 years earlier, value at the time of the theft was $300, he hands me a check for $300, which his car insurance paid.  I didn't argue.  I liked the guitar, but I liked $300 better!  We are still good friends with no hard feelings over this issue.  My other two guitars were stolen when my house was broken into, about 25 years ago.  One was recovered due to putting the word out to guitar shops.  The other was never found.  I filed police reports but they did not locate the guitars.  They did, however, find my stolen microwave oven, which was not as exciting to get back......

My point is it can happen to anyone and it left me with a creepy feeling of being violated on several levels.  Of course, it could have been worse, but I lost interest in music briefly because of it.

As discussed, this is not what we would call a traditional theft, since a loan of the instrument was involved.  But, we are still talking about property that has an approximate value of $3500-5500.

----------


## Alaskamando

Holy smokes! I had no idea my post would generate so much discussion. I apologize to those of you who think it a waste of time. As I mentioned in my last post the collector and I have talked. He "loaned" the mandolin to Dan around 1997. The collector felt the instrument deserved to be played rather than sit in a closet. I agree. Dan kept it in his possession exclusively from the time it was handed to him until he hocked it in 2002. The collector considered Dan a good friend...went to the same church and all that. I suspect that's why a report was never filed or the police contacted. When Dan hocked it in 2002 he left town for over a year. Upon his return the collector asked him about theandolin. Dan simply said he hocked it. 

I have no idea how long it was in the pawn shop before it was bought by the guy I bought it from. I have no idea how long he owned it before he decided to sell it. The gent posted it on Craigslist where I saw it and bought it. It was only on Craigslist a day or so before I snapped it up. 

Though I don't want to sell it I did offer the mando to the collector for what I paid for it. He declined saying he shouldn't have to pay for something that he already bought. I told him if he changes his mind to let me know. I have been honest and forthright in my dealing with him and am able to look myself in the mirror and feel good. 

Just to add fuel to the fire the Collector has Parkinson's. He is selling his collection because of that and I have no doubt he would sell the F2 if he had it. In his collection is a 1919 Gibson F4...a 1909 Gibson 3 point...and a 1991 Gibson Lloyd Loar model. 

This should get even more interesting. Thanks.

----------

FLATROCK HILL, 

rfloyd

----------


## journeybear

Thanks for the update. Good thing - facts beat fantasizing every time. Well, almost.  :Wink:  Anyway, so many of us here are blessed/cursed with vivid imaginations, and when these are given free rein, they venture far afield.  :Whistling: 

Keep us posted!

----------


## hank

I'm glad to hear from Alaskamando and especially that the collector was of the mind set that the mandolin should be played.  This is something we understand here.  As diverse a group as the Cafe forum members may be, this is the mantra that unites and drives many of us to buy, play and preserve these beautiful creations from the past.  They were built to sing but without us to play them they are mute.
   I have a lot of admiration for this collector that put his F-2 in the hands of a player so it could be played instead of collecting dust in a vault or showroom display.  It's horribly sad that this talented artist lost his way and hurt himself and those who loved and supported him.

----------


## Tom C

Tough spot. Sounds like he wants his mando back but not willing to pay. This means he may pursue legal routes. How much time do they have to do this? It would stink having this mando not knowing if you will get summoned for say...the next 7 years.... If you actually own it... or repair any thing it may need fixed.  Would you play it in public knowing eyes may be on it? As I stated in past somebody has to absorb the cost and it may just be the collector if he wants it back.

----------


## Capt. E

It would be interesting to know if the Collector filed an insurance claim or not. I doubt if the value is high enough for the company to claim the mandolin and to sell it to recover the claim.
It is yours unless the Collector has documentation...photos, serial number, signed agreement with the musician, etc: an insurance company would have required documentation for a claim.

----------


## Jeff Mando

> Tough spot. Sounds like he wants his mando back but not willing to pay. This means he may pursue legal routes. How much time do they have to do this? It would stink having this mando not knowing if you will get summoned for say...the next 7 years.... If you actually own it... or repair any thing it may need fixed.  Would you play it in public knowing eyes may be on it? As I stated in past somebody has to absorb the cost and it may just be the collector if he wants it back.


In this situation, it seems doubtful that the collector will do anything, especially with Parkinson's.  At a certain stage in life, it is just easier to let things go.

OTOH, if I saw someone playing one of my stolen guitars on stage, even 25 years later, I would walk up and take my guitar home.  (I MIGHT let them finish the song.... :Wink: )  If the new owner protested, I have the police report and serial number to back up my claim.  Unlikely to happen at this point and who knows how many owners later, but just saying.....of course the "new" owner would more than likely be unaware of the background of the guitar, BUT, dem's the breaks!

I say at a certain point in life it is easier just to let it go, but my mother lives on a street that is mostly 80-90 year old widows. (funny how that works, huh?)  Anyway, my mother is well-adjusted, but she has a neighbor lady that is always suing someone for something, always having her property surveyed so she knows exactly where the property line is, etc.  You know the type--you could call it a mild form of mental illness or just having too much time on your hands everyday.....anyway, I remind my mom not to turn into the crazy lady next door.....

----------


## D C Blood

To keep this discussion on lost and/or stolen mandolins, etc, going..  1..In (circa) 1970 I had a 1962 model D-18 guitar stolen from my car while I was playing a gig inside (I know, dumb)...Serial #186610.  I filed a police report with the local police.  Ever since, any time I see a D-18 I check the serial #.  I have no idea if the police would still have the report on file.  I never did get a copy.  2.  In 1971 I was in the Air Force, about to go to Vietnam.  I had a minty 1936 Gibson F-7 and a brand new Paganoni (wish I still had)..I had become good friends with a family with a couple of kids who were great pickers and singers. The mandolin picker had an A-model Gibson, but I felt he needed something better.  Being as I had a great mandolin and a really good mandolin, I gave him the F-7.  Not loaned, gave.  Over the ears, I lost track of the family.  I had left the Air Force and moved to Nashville.  Last time I saw the family was 1974. They were just getting ready to move to Alaska.  I believe they went to Fairbanks.  I didn't hear from them again.  When I finally found them again, last year, I learned that the F-7 had been stolen from them and there had been two deaths in the family.  I would love to know if any of you folks up there in Alaska remember or know of anyone who bought an F-7 maybe at bargain price or under suspicious circumstances...At this point nothing could probably be proved, and I don't know if my friend ever filed a report.  Anyway, If you are going to let someone deserving have an instrument...give it to them, don't loan it to them...

----------

Timbofood

----------


## Jeff Mando

The ownership saga of the F2 shows some parallels to real estate deeds, namely a warranty deed vs. a quitclaim deed.  Basically showing levels of ownership, as already discussed by some of the legal experts here.  A warranty deed guarantees you own your home, while a quitclaim deed has no guarantee.  But, even with a title search having been performed, as I understand it, a warranty deed can still be challenged, but you would be covered for your purchase price if other ownership could be proven.  In other words, it gives you a couple more layers of protection.  Like I say, different levels of ownership that mostly apply to things of a higher cost.  In other words, if I ate a candy bar and couldn't prove ownership, it is unlikely that somebody would want the candy bar back--if I understand the concept.... :Disbelief:

----------

Spnrclf

----------


## Spnrclf

Jeff you are on the right track.

I would like to save Alaskamandolin and the collector time, money and aggravation. I will offer some of what I found during my research of Alaskamando's question this week. I will try to reduce the amount of legal jargon, but any question of ownership is a legal question first. You may think to yourself that possession is nine tenths of the law. This is the other tenth that possession does not cover. 

Stevedenver, I looked in the Uniform Laws Annotated for a model act or uniform statute that covered “civil theft”. I did not find one. I also researched Massachusetts, (where I am), and Alaska, without finding a civil theft statute for those states. I did find Colorado state cases that deal with the topic and found that the West Key Numbers and Topics equate conversion with civil theft. This suggests to me that they are equivalent conceptually. Conversion remains a strong possibility for the collector. 

I ran this question past my colleague who teaches Secured Transactions for his reaction to this situation. He pointed me to the Uniform Commercial Code, section 2-403.
The equivalent Alaska statute is:Sec. 45.02.403. Power to transfer; good faith purchase of goods; ""entrusting.''.

These statutes read:
Sec. 45.02.403. Power to transfer; good faith purchase of goods; ""entrusting.''.

"(a) A purchaser of goods acquires all title which the transferor had or had power to transfer, except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. (...)"

I interpret this language to mean that the mando-player could only convey those rights that the owner gave the player, to borrow the mandolin. All other rights to ownership remained with the owner. As the player held no title to the mandolin he could not sell the instrument. 
Initially I thought perhaps the “entrusting” section of the statute would provide an ownership argument to Alaskamandolin. However, that section must be read in conjunction with the preceding section on conveyance of title. It is clear that the pawnshop could not convey clear title to the Craigslist seller, and the Craigslist seller could not convey title to Alaskamandolin. All of this is to say, the collector is still the owner. 
Normally a tort in Alaska has a 2 year statute of limitations. However, Alaska extended the statute of limitations under AK ST section 09.10.050 for property, including personal property, to six years. So collector could continue to pursue this for 6 years. 
Some states begin the timer on statute of limitations with discovery, some with the issue of a demand letter. I did not find out what Alaska does with starting this timer. 
Should Alaskamandolin ignore the demand for the return of the mando, he could get perfect title to it by “adverse possession”, which can apply to personal property as well as to land. If the collector does not go to court the mandolin would become Alaskamandolin's property after 6 years.
Collector can respond to this strategy by going to small claims court and getting a writ of replevin, requiring the return of the mando instead. Collector should make for a wonderful plaintiff in court as he will be visibly ill, and should bring witnesses from his church as witnesses to the loan of the mandolin. 
If collector passes away, his estate can pursue this action. He is likely to be in financial need due to ill health and his administrator will probably be aware of the existence this asset that could be converted into cash to pay debts or for inheritance, especially if he leaves a spouse. A good administrator will be aggressive about pursuing this issue including going to court. 
Alaskamandolin, if you were my best friend my advice would be to see if collector would consider a partnership to sell the mandolin. Get a dealer who would take it on consignment at a good market price. Then divide the proceeds according to the proportion to which you are both invested in the instrument. That would be: if he paid $2K and you paid $3K, and you sell at $4K, he receives $1,600, and you receive $2,400. Otherwise, one of you gets zero. 

My guess would be that you are most vulnerable in this situation. This is my best advice as a lawyer and a friend. Good luck. 
Spencer

----------


## Tobin

By the time the collector paid an attorney and court fees, I doubt this mandolin would gain him anything financially.  He might be worse off, actually.  As usual, nobody would come out on top except the lawyers.  No offense to the attorneys in this thread, but it is very cost prohibitive to pursue things like this.  And the time line to get through the legal process is not favorable to a man with a terminal disease.

----------


## jim simpson

If the collector (or his estate) did pursue legal action, where does that leave all of those in the chain prior to our Alaskan friend's possession?

----------


## jljohn

> Jeff you are on the right track.
> 
> I ran this question past my colleague who teaches Secured Transactions for his reaction to this situation. He pointed me to the Uniform Commercial Code, section 2-403.
> The equivalent Alaska statute is:Sec. 45.02.403. Power to transfer; good faith purchase of goods; ""entrusting.''.
> 
> These statutes read:
> Sec. 45.02.403. Power to transfer; good faith purchase of goods; ""entrusting.''.
> 
> "(a) A purchaser of goods acquires all title which the transferor had or had power to transfer, except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. (...)"


Spencer,

Haven't you cut off the most relevant language of UCC 2-403 to this situation?:

"A person with voidable title has power to transfer a good title to a good faithpurchaser 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."

Wouldn't it be the case that if the mandolin was initially procured through theft no title could pass, despite a good faith purchase for value, but if the mandolin was procured via fraud, then the pawn shop would have had a voidable title that was conveyed as good title to a good faith purchaser for value?  If this reading is correct, then the relevant question is really a factual one--was the sale of the mandolin to the pawn shop an act of theft or fraud, right?  

This is a serious question.  Dan did not acquire the mandolin by theft.  It was willingly placed in his possession by the collector.  Under the law, isn't his transaction with the pawn shop an act of fraud and not theft?

Of course this all assumes that AK has adopted the UCC and that pawn shops are not exempted somehow.

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## Spnrclf

Tobin, the collector could proceed pro se, without an attorney, probably in small claims court. Then he would only have a filing fee. 

JlJohn, this isn't a voidable title situation. If collector had sold the mandolin to Dan and Dan's check had bounced, then there would have been a voidable title by the collector. And then, you would be correct, the pawn shop would have been able to convey title even if there had been a fraudulent intent on Dan's part. This is not the situation. Dan used the mandolin as collateral on a loan, indicating there was no intent to sell the mandolin. But, if he had sold it, he did not have any title to convey, and according to the wording of the statute, he could only convey the title he held which was none. Note that the statute I am using is from Alaska. Collector can take that to court. The UCC is adopted by every state but Louisiana, and they have an equivalent. 
Pawnshops would qualify under the entrustment section of the statute and be able to convey good title if they had received the mandolin from the legal owner. Here they did not. The person they received the mandolin from did not have the authority to use the mandolin as collateral for a loan. The pawnshop could only convey what title they received and they  received no title. 
I have not looked at what the rights of subsequent purchasers are in the chain. I would think they would have recourse against each prior seller up to the pawnshop having recourse against Dan. But he is now judgement proof. This is why I would recommend the solution I did. It allows  Alaskamandolin and the collector an opportunity to cut their losses by equitably sharing the pain without going to court, or involving more attorneys. This is what I would recommend to any friend of mine.

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## Spnrclf

JlJohn, that was a great question. Thanks for asking.

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## MikeEdgerton

With regards to insurance claims, the company I work for paid a claim on a stolen firearm in 1982. Two years ago that firearm was recovered by the police in a state half way across the country from where it was stolen some 30 years earlier. As we had paid the claim the firearm belonged to us. If the collector had filed a claim with us (apparently he didn't file with anyone) and that mandolin came to our attention, we would own it no matter who bought it from whom. Carry on.

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## Jeff Mando

> With regards to insurance claims, the company I work for paid a claim on a stolen firearm in 1982. Two years ago that firearm was recovered by the police in a state half way across the country from where it was stolen some 30 years earlier. As we had paid the claim the firearm belonged to us. If the collector had filed a claim with us (apparently he didn't file with anyone) and that mandolin came to our attention, we would own it no matter who bought it from whom. Carry on.


Interesting point, Mike!  What happens to the firearm once the insurance company gets it?  Does it get sold?  At auction?  Ebay?

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## MikeEdgerton

In this case we simply asked the police department to destroy it. Not a lot of value in the item. Now, if it had been a vintage mandolin I might have had it shipped here so I could buy it from the company.

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## FLATROCK HILL

> With regards to insurance claims, the company I work for paid a claim on a stolen firearm in 1982. Two years ago that firearm was recovered by the police in a state half way across the country from where it was stolen some 30 years earlier. As we had paid the claim the firearm belonged to us. If the collector had filed a claim with us (apparently he didn't file with anyone) and that mandolin came to our attention, we would own it no matter who bought it from whom. Carry on.


Well Mike, that makes perfect sense. From my experience, in order for the insurance company to compensate the rightful owner for the loss, the owner signs away his or her ownership to the insurance company. 

The interesting thing would be to see how the claim in this case would be handled. The owner allowed someone to borrow the item and evidently didn't know of the subsequent change of hands or when that transfer occurred. Would the insurance co have paid? 

I only ask because I know from experience that the 'way' you present the facts to the insurer has some bearing on how they handle the claim. For instance, let's say you discover your vehicle has been damaged in a parking lot when you return to it. Was it accidentally hit by another vehicle or was it vandalized? You may not really know for sure, but your coverage may depend on how you present your case to the insurer.

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## Austin Bob

First, I would like to commend the OP for contacting the collector directly, that showed class and integrity.

I'm no lawyer, but to me there are way too many details we do not know to hazard a guess as to how a court of law would rule on this. We simply do not know the exact details of what transpired between Dan and the collector when the mandolin first changed hands, or what documentation the collector has of the transaction. Nor do we know if an insurance claim was ever filed. But since he did not file a police report, I would assume the burden of proof would be on the collector to demonstrate the mandolin was in fact stolen.

What we have is a difference of opinion: the OP paid for the mandolin, and therefore assumes he has clear title unless proven otherwise. The collector's opinion is that he was the victim of theft, and therefore should not have to pay the OP to have the mandolin returned. This is exactly why we have civil courts to decide such matters, otherwise the biggest guy or the fastest draw always wins.

Me, I'm fairly quick for a big guy.

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## MikeEdgerton

> Well Mike, that makes perfect sense. From my experience, in order for the insurance company to compensate the rightful owner for the loss, the owner signs away his or her ownership to the insurance company. 
> 
> The interesting thing would be to see how the claim in this case would be handled. The owner allowed someone to borrow the item and evidently didn't know of the subsequent change of hands or when that transfer occurred. Would the insurance co have paid? 
> 
> I only ask because I know from experience that the 'way' you present the facts to the insurer has some bearing on how they handle the claim. For instance, let's say you discover your vehicle has been damaged in a parking lot when you return to it. Was it accidentally hit by another vehicle or was it vandalized? You may not really know for sure, but your coverage may depend on how you present your case to the insurer.


I think you'd be hard pressed to make an insurance claim this late in the game, although you certainly could attempt it. It might be hard to prove the loss after this much time and I also think it might be a little late to file a police report although you certainly could try. You'd have to prove the loss to the insurance company and have a real good reason as to why you're trying to make the claim at such a late date. Claims do get filed years after policies expire but they generally aren't for property loss like this.

So to answer the other part of the question it's not just how you present a claim but also when you present the claim. Most insurance companies aren't looking to pay out money unless they have to and on something like this they could probably tie it up for a long time. What you need is a timely claim with proof as to what took place. A police report that the item was stolen, a signed agreement that someone didn't live up to, etc. You need to be able to justify the loss in a manner that is believable. In this case you'd eat up attorney fees well beyond the value of the instrument pretty quickly.

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FLATROCK HILL

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## Tobin

> Tobin, the collector could proceed pro se, without an attorney, probably in small claims court. Then he would only have a filing fee.


True, I suppose he could.  And not knowing anything about this collector, maybe it is within his means.  But if I were to guess, a fellow with Parkinson's, not knowing the intricacies of the law (I think we agree this is a complicated case that requires some legal background in order to make a coherent case based on statute and precedent), it seems unlikely.  This is, after all, why we regular folk have to hire attorneys.  We can't just stand up in front of a judge and say, "that mandolin belongs to me and I want it back".  It must be filed as a particular type of suit, with the correct legal language and paperwork, and facts presented in the correct manner, with references to supporting statutes, lest it be dismissed on a technicality.  I don't know any normal person who has the know-how to do such a thing.  Surely the banter in this thread demonstrates the legal knowledge of the average Joe.

So even though representing oneself may be technically possible, I daresay it's not realistic.

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## Spnrclf

You are right, Tobin. I looked at the Alaska Small Claims Court Handbook and he could not use that process. He would likely need a lawyer to proceed in District Court.

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