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Seller Beware: Who really owns it? - By Susan Halas A rare 1885 map of Maui had a gift letter, but it wasn't hers to sell. Photo Fitzpatrick & Moffat. As a dealer and sometime collector of vintage and antiquarian Hawaiiana since 1979, I’ve run into many interesting collections of books, maps, prints and photos and related antique paper. I’ve bought and sold many of these things and been asked for a professional opinion on many other occasions. But within the last year two events have made me acutely aware that not everything offered for sale, no matter how authentic, rare or intellectually exciting it may be, is actually the seller’s property to sell. Beautiful Map Brings a Hefty Price Incident #1 happened in the fall of 2011. A colleague and I hosted an exhibit tracing the history of Hawaii with a display of maps from Capt. Cook through statehood at a small local museum. The publicity for the event caught the eye of a local history teacher who had a friend who had an antique map of Maui. The friend asked the teacher if she knew what it was and what it might be worth? The teacher, who had heard about the map show, contacted me. She produced the map and a gift letter. In brief the letter said that the owner, back on the Mainland, had this map. It had been in his possession a long time, it wasn’t doing him much good and really belonged back in Hawaii. He wanted the teacher’s friend (who was also a friend of his) to have it. The map was the best copy I had ever seen of the 1885 survey of Maui by WD Alexander. It was in flawless condition. I got chicken skin when I saw it. The hair on my arms literally stood up with excitement. Though beat up and raggedy copies sometimes came to market in the $200-$500 range, a copy in this shape I said could go for $2,000 to $5,000. I told the teacher if her friend wanted to sell it I’d be happy to look for a buyer. To my surprise the friend did want to sell it. I priced it at $5,000, and we agreed on a commission. I took one photo of the map, made a copy of the gift letter and sold it on the first call for the full amount. A few days later I picked up the check, gave the seller her share. It was smiles all around. That is until a few days later, when early on a Sunday morning my phone rang. Who should be on the other end but the donor and writer of the gift letter, who was nearly hysterical with rage. Did I not know that he was the archivist at an important American map repository? Was it not crystal clear from his letter that it was his intent to have the map donated to a local school? I’d better get the map back to him and double-quick or he’d call the state attorney general and have me thrown in the calaboose. Did he make himself perfectly clear? As it turned out, I did get the map back. I reversed the transaction, returned both the map and the letter to the teacher’s friend, who returned them post haste to the irate archivist. It Was A Wake Up Call But the experience was a wake up call for me. It made it really clear that the world of libraries and archives and their staffs and the world of dealers and collectors don’t really play by the same rules. It was clear by the text of the letter that he had gifted the map to his friend, and probably had the authority to do so because as an executive level staffer he had the authority to dispose of or de-accession things that were duplicates or thought to be of minor value. The map may have been a duplicate, but he was wrong about the value. He found that out when the friend wrote him joyfully about this stroke of good luck and offered him half of the proceeds. That’s when he panicked big time. He knew that if his employer ever got word of this transaction his career would be toast. So he changed his story: he didn’t mean to give it to his friend, his letter had been totally misunderstood: he had meant to donate to a school in Hawaii with the friend as an intermediary. Despite the fact that his letter didn’t say anything of the sort, that was his version. I got him back the map. That left all of us -- seller, buyer and dealer, out the time and the money, but the halls of academe remained serene and nobody was any wiser. It was apparent that Mr. High Mucka-Mucka had a very thin grasp on antique map values in the open market. As for how many other little presents like this he had made over the years from things in his care, who knew? But now I found out the hard way I had to be more careful, much more careful. I had to really truly thoroughly check on anything I had even the remotest suspicion might come from a library, archive or any kind of public institution. No matter what the letter said, I realized I should have checked with the donor first.
Seller Beware: Who really owns it? - By Susan Halas A rare 1838 map of the islands from a little New England library, did it still belong to them? Here We Go Again Incident #2 came up less than a year later in the spring of 2012. A good client on Oahu called me to say some missionary era Hawaiiana had come to market in Honolulu. Among the items offered for sale was an exceedingly rare 1838 map from the press at Lahainaluna. The map and the other pieces in the collection had once belonged to an early New England missionary to the islands. My client gave me the name of the seller’s agent, who was not a professional in the antiquarian field and seemed like an unlikely choice to represent such early, rare and unusual items. In addition to the delicious map the collection included one of the earliest Bibles printed in the Hawaiian language and a number of native artifacts. They were individually priced. We're talking six figures or more for the lot. I contacted the agent and immediately I thought something was fishy and let it drop. A few weeks passed and I got a call back, was I still interested? Well, I thought, let’s at least have a look. Within a few days I received a price list, many photos of the items and copies of documents. The documents did indeed verify that these items once belonged to an early missionary to Hawaii and were gifted at the beginning of the 20^th century to a small town library in New England. What is missing is the information on how they got from the library to hands of a private party. After I’d asked the seller’s agent several times for a bill of sale, gift letter or receipt and didn’t get any response, I called the library. I spoke with the librarian who said she had worked there since 1981and did not know anything about the transaction. She was fairly abrupt with me and our conversation only lasted a few minutes. I left my name, number and email address. A few hours later she emailed back and said that she had spoken with someone who had worked at the library before her time and that these items were once part of their collection, but she did not provide any details of how they came to be de-accessioned. Then in the course of several more calls the story started to change: First the librarian didn’t have any recollection of this collection. Next she dug into it further and discovered that they once did own it. Then it turned out some 30 or 40 years ago they “gave” all that old stuff away without so much as a receipt to someone close to the library to "make space." The recipient of the items is a person they know well. The recipient is “a good person” who lives in their town and has kept these materials safely for all the intervening years. The recipient located a representative in Hawaii and put them up for sale. The library, having discovered from my phone call that the old stuff that they gave away long ago was on the market and is said to be worth big bucks, convened an emergency meeting of the library trustees. They got a lawyer and the trustees decided, lo these many years later, that it’s their stuff and they want it back. “We intend to recover our property,” the librarian told me. Then came a variety of ex post facto rationales to justify their actions including their “fiduciary responsibility to the heirs of the original donors” and that the person who gave it away “did not have the authority to do so,”....well just use your imagination. Then it was old junk, just taking up space. Now it’s a priceless treasure, and in their eyes it’s still their property. Who is right? Who is the real owner of this material? Ask Our AE Expert My next call was to our own in-house expert, AE publisher Bruce McKinney, who is often asked to mediate in cases of this sort. According to McKinney, “These kinds of situations are a lot more common than you might think.” Often, he said, they involve goods that were stolen or misappropriated, but sometimes they also are about situations where something was thrown out, dumped in the trash, given away or changed hands with few or no records to substantiate the transfer. Time passes, values increase and when the goods finally come to market there's an argument -- and even a battle in court -- about who is the rightful owner. What these cases have in common is the causal agent is frequently some long ago librarian or keeper of the public files who thought they'd just clean out the junk that nobody used or wanted anymore.
Seller Beware: Who really owns it? - By Susan Halas A rare 1885 map of Maui had a gift letter, but it wasn't hers to sell. Photo Fitzpatrick & Moffat. Replevin McKinney suggested that dealers and collectors would do well to familiarize themselves with the laws relating to "right of replevin.” Replevin is the legal term which covers recovery of property and deciding who owns what in disputed cases. Though space here does not allow an adequate discussion of this subject, if you deal or collect things that may once have belonged to a public entity you want know more about replevin. Under some laws and in some jurisdictions the mere assertion that the item in question was once, even hundreds of years and many owners ago, a public document, is enough for the court to rule in favor of its return. How the case of the rare Hawaiiana will turn out remains to be seen. As a dealer I wouldn’t touch it or tell my clients about it until I’m positive it is really the seller’s property to sell. We all know we’re living in a time of transition. What I’ve learned is librarians and archivists are often the worst judges of value and also their procedures for de-acessioning can give you nightmares (See article – De-Acessioning by Dumpster in this month's issue of AE Monthly). Now and in the past items of value were thrown out or given away. When it turns out later the material is rare and valuable, all parties want a piece of the action. The stories can change considerably depending on who is telling the tale. Beware, you -- the dealer or collector -- can find yourself caught in the middle. As McKinney suggested I took the time to Google replevin. Here are a few links that cover the subject from the point of view of the archives and libraries and also from the side of the dealers and collectors. Though some of these links mention work that is clearly stolen or misappropriated, read it to understand how these situations develop, escalate and play out in the courts. Replevin Links A 2004 issue of Railsplitter, a journal for collectors of Lincoln material that examines the issue of replevin from the point of view of the auction house, the collector and the public archive. Probably the most balanced account I found of the hazards involved in acquiring historical documents which once came from a public source. Only part of the newsletter relates to replevin. www.railsplitter.com/wordpress/PDF/Vol10No1_2.pdf. Article in Maine Antique Digest c. 2008 about colonial era documents about to be auctioned that were claimed by New Hampshire as “public documents”. www.maineantiquedigest.com/stories/?id=659. Review of a 1987 court case concerning ownership of an extensive library of Judaica – did it belong to the religious community or to the heirs of the rabbi? openjurist.org/833/f2d/431/agudas-chasidei-chabad-of-united-states-v-gourary. Duke Law Journal 2001, deals primarily with stolen art and good faith purchasers, but contains much information that dealers and collectors of historic material will find relevant. scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1102&context=dlj. Art Attack 2006 – Also deals with litigation arising from stolen art and describes situations of interest to those who deal in antiquarian materials of all kinds. www.abajournal.com/magazine/article/art_attack/. Archivists, Collectors, Dealers, and Replevin: Case Studies on Private Ownership of Public Documents. This is a hard cover new book published in 2012 listed on Amazon. The listing allows access to sample pages and chapter headings. www.amazon.com/Archivists-Collectors-Dealers-Replevin-Ownership/dp/0810883775. A 30-page paper c. 2010 on replevin law from an archivist point of view www.armaedfoundation.org/pdfs/Paper_Mattern_Eleanor_2011.pdf. Archives & Manuscripts: Law – A 112-page manual published in 1985 by the Society of American Archivists. This a very big pdf file, a small portion deals with replevin. Though the content is somewhat dated, it is still of general interest. www2.archivists.org/sites/all/files/Archives&Mss-Law.pdf. AE writer Susan Halas can be reached at wailukusue@gmail.com

Seller Beware: Who really owns it?

- By Susan Halas

A rare 1885 map of Maui had a gift letter, but it wasn't hers to sell. Photo Fitzpatrick & Moffat.

As a dealer and sometime collector of vintage and antiquarian Hawaiiana since 1979, I’ve run into many interesting collections of books, maps, prints and photos and related antique paper. I’ve bought and sold many of these things and been asked for a professional opinion on many other occasions.

But within the last year two events have made me acutely aware that not everything offered for sale, no matter how authentic, rare or intellectually exciting it may be, is actually the seller’s property to sell.

Beautiful Map Brings a Hefty Price

Incident #1 happened in the fall of 2011. A colleague and I hosted an exhibit tracing the history of Hawaii with a display of maps from Capt. Cook through statehood at a small local museum.

The publicity for the event caught the eye of a local history teacher who had a friend who had an antique map of Maui. The friend asked the teacher if she knew what it was and what it might be worth? The teacher, who had heard about the map show, contacted me. She produced the map and a gift letter.

In brief the letter said that the owner, back on the Mainland, had this map. It had been in his possession a long time, it wasn’t doing him much good and really belonged back in Hawaii. He wanted the teacher’s friend (who was also a friend of his) to have it.

The map was the best copy I had ever seen of the 1885 survey of Maui by WD Alexander. It was in flawless condition. I got chicken skin when I saw it. The hair on my arms literally stood up with excitement.

Though beat up and raggedy copies sometimes came to market in the $200-$500 range, a copy in this shape I said could go for $2,000 to $5,000.

I told the teacher if her friend wanted to sell it I’d be happy to look for a buyer. To my surprise the friend did want to sell it.

I priced it at $5,000, and we agreed on a commission. I took one photo of the map, made a copy of the gift letter and sold it on the first call for the full amount.

A few days later I picked up the check, gave the seller her share. It was smiles all around. That is until a few days later, when early on a Sunday morning my phone rang. Who should be on the other end but the donor and writer of the gift letter, who was nearly hysterical with rage.

Did I not know that he was the archivist at an important American map repository? Was it not crystal clear from his letter that it was his intent to have the map donated to a local school? I’d better get the map back to him and double-quick or he’d call the state attorney general and have me thrown in the calaboose. Did he make himself perfectly clear?

As it turned out, I did get the map back. I reversed the transaction, returned both the map and the letter to the teacher’s friend, who returned them post haste to the irate archivist.

It Was A Wake Up Call

But the experience was a wake up call for me. It made it really clear that the world of libraries and archives and their staffs and the world of dealers and collectors don’t really play by the same rules.

It was clear by the text of the letter that he had gifted the map to his friend, and probably had the authority to do so because as an executive level staffer he had the authority to dispose of or de-accession things that were duplicates or thought to be of minor value.

The map may have been a duplicate, but he was wrong about the value. He found that out when the friend wrote him joyfully about this stroke of good luck and offered him half of the proceeds.

That’s when he panicked big time. He knew that if his employer ever got word of this transaction his career would be toast.

So he changed his story: he didn’t mean to give it to his friend, his letter had been totally misunderstood: he had meant to donate to a school in Hawaii with the friend as an intermediary. Despite the fact that his letter didn’t say anything of the sort, that was his version.

I got him back the map. That left all of us -- seller, buyer and dealer, out the time and the money, but the halls of academe remained serene and nobody was any wiser. It was apparent that Mr. High Mucka-Mucka had a very thin grasp on antique map values in the open market. As for how many other little presents like this he had made over the years from things in his care, who knew?

But now I found out the hard way I had to be more careful, much more careful. I had to really truly thoroughly check on anything I had even the remotest suspicion might come from a library, archive or any kind of public institution. No matter what the letter said, I realized I should have checked with the donor first.

Seller Beware: Who really owns it?

- By Susan Halas

A rare 1838 map of the islands from a little New England library, did it still belong to them?

Here We Go Again

Incident #2 came up less than a year later in the spring of 2012.

A good client on Oahu called me to say some missionary era Hawaiiana had come to market in Honolulu. Among the items offered for sale was an exceedingly rare 1838 map from the press at Lahainaluna. The map and the other pieces in the collection had once belonged to an early New England missionary to the islands.

My client gave me the name of the seller’s agent, who was not a professional in the antiquarian field and seemed like an unlikely choice to represent such early, rare and unusual items.

In addition to the delicious map the collection included one of the earliest Bibles printed in the Hawaiian language and a number of native artifacts. They were individually priced. We're talking six figures or more for the lot.

I contacted the agent and immediately I thought something was fishy and let it drop. A few weeks passed and I got a call back, was I still interested? Well, I thought, let’s at least have a look.

Within a few days I received a price list, many photos of the items and copies of documents. The documents did indeed verify that these items once belonged to an early missionary to Hawaii and were gifted at the beginning of the 20^th century to a small town library in New England.

What is missing is the information on how they got from the library to hands of a private party. After I’d asked the seller’s agent several times for a bill of sale, gift letter or receipt and didn’t get any response, I called the library.

I spoke with the librarian who said she had worked there since 1981and did not know anything about the transaction. She was fairly abrupt with me and our conversation only lasted a few minutes. I left my name, number and email address.

A few hours later she emailed back and said that she had spoken with someone who had worked at the library before her time and that these items were once part of their collection, but she did not provide any details of how they came to be de-accessioned.

Then in the course of several more calls the story started to change: First the librarian didn’t have any recollection of this collection. Next she dug into it further and discovered that they once did own it.

Then it turned out some 30 or 40 years ago they “gave” all that old stuff away without so much as a receipt to someone close to the library to "make space."

The recipient of the items is a person they know well. The recipient is “a good person” who lives in their town and has kept these materials safely for all the intervening years. The recipient located a representative in Hawaii and put them up for sale.

The library, having discovered from my phone call that the old stuff that they gave away long ago was on the market and is said to be worth big bucks, convened an emergency meeting of the library trustees. They got a lawyer and the trustees decided, lo these many years later, that it’s their stuff and they want it back.

“We intend to recover our property,” the librarian told me.

Then came a variety of ex post facto rationales to justify their actions including their “fiduciary responsibility to the heirs of the original donors” and that the person who gave it away “did not have the authority to do so,”....well just use your imagination.

Then it was old junk, just taking up space. Now it’s a priceless treasure, and in their eyes it’s still their property.

Who is right? Who is the real owner of this material?

Ask Our AE Expert

My next call was to our own in-house expert, AE publisher Bruce McKinney, who is often asked to mediate in cases of this sort.

According to McKinney, “These kinds of situations are a lot more common than you might think.”

Often, he said, they involve goods that were stolen or misappropriated, but sometimes they also are about situations where something was thrown out, dumped in the trash, given away or changed hands with few or no records to substantiate the transfer.

Time passes, values increase and when the goods finally come to market there's an argument -- and even a battle in court -- about who is the rightful owner.

What these cases have in common is the causal agent is frequently some long ago librarian or keeper of the public files who thought they'd just clean out the junk that nobody used or wanted anymore.

Seller Beware: Who really owns it?

- By Susan Halas

A rare 1885 map of Maui had a gift letter, but it wasn't hers to sell. Photo Fitzpatrick & Moffat.

Replevin

McKinney suggested that dealers and collectors would do well to familiarize themselves with the laws relating to "right of replevin.”

Replevin is the legal term which covers recovery of property and deciding who owns what in disputed cases.

Though space here does not allow an adequate discussion of this subject, if you deal or collect things that may once have belonged to a public entity you want know more about replevin.

Under some laws and in some jurisdictions the mere assertion that the item in question was once, even hundreds of years and many owners ago, a public document, is enough for the court to rule in favor of its return.

How the case of the rare Hawaiiana will turn out remains to be seen. As a dealer I wouldn’t touch it or tell my clients about it until I’m positive it is really the seller’s property to sell.

We all know we’re living in a time of transition. What I’ve learned is librarians and archivists are often the worst judges of value and also their procedures for de-acessioning can give you nightmares (See article – De-Acessioning by Dumpster in this month's issue of AE Monthly). Now and in the past items of value were thrown out or given away. When it turns out later the material is rare and valuable, all parties want a piece of the action. The stories can change considerably depending on who is telling the tale.

Beware, you -- the dealer or collector -- can find yourself caught in the middle.

As McKinney suggested I took the time to Google replevin.

Here are a few links that cover the subject from the point of view of the archives and libraries and also from the side of the dealers and collectors.

Though some of these links mention work that is clearly stolen or misappropriated, read it to understand how these situations develop, escalate and play out in the courts.

Replevin Links

A 2004 issue of Railsplitter, a journal for collectors of Lincoln material that examines the issue of replevin from the point of view of the auction house, the collector and the public archive. Probably the most balanced account I found of the hazards involved in acquiring historical documents which once came from a public source. Only part of the newsletter relates to replevin.

www.railsplitter.com/wordpress/PDF/Vol10No1_2.pdf.

Article in Maine Antique Digest c. 2008 about colonial era documents about to be auctioned that were claimed by New Hampshire as “public documents”.

www.maineantiquedigest.com/stories/?id=659.

Review of a 1987 court case concerning ownership of an extensive library of Judaica – did it belong to the religious community or to the heirs of the rabbi?

openjurist.org/833/f2d/431/agudas-chasidei-chabad-of-united-states-v-gourary.

Duke Law Journal 2001, deals primarily with stolen art and good faith purchasers, but contains much information that dealers and collectors of historic material will find relevant.

scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1102&context=dlj.

Art Attack 2006 – Also deals with litigation arising from stolen art and describes situations of interest to those who deal in antiquarian materials of all kinds.

www.abajournal.com/magazine/article/art_attack/.

0810883775.

A 30-page paper c. 2010 on replevin law from an archivist point of view

www.armaedfoundation.org/pdfs/Paper_Mattern_Eleanor_2011.pdf.

Archives & Manuscripts: Law – A 112-page manual published in 1985 by the Society of American Archivists. This a very big pdf file, a small portion deals with replevin. Though the content is somewhat dated, it is still of general interest.

www2.archivists.org/sites/all/files/Archives&Mss-Law.pdf.

AE writer Susan Halas can be reached at wailukusue@gmail.com