The statute of limitations, as to lost personal property, or personal property in the hands of a thief, begins to run from the time of the wrongful taking or possession, and not from the time when the owner first had knowledge thereof, provided there was no fraud or attempt at concealment; and if such fraud or concealment exists it must, in order to avail the owner, be the act of the thief or finder of the property.
Plaintiff instituted an action in replevin against defendant for the recovery of a violin, violin bow, and violin case. The plaintiff alleged that the property was stolen from plaintiff in January, 1933, and that in March, 1938, plaintiff discovered it in the possession of defendant and made demand therefor, which was refused. It is further alleged that defendant's possession was not open, notorious and in good faith, and that it was sought to conceal the identity of the violin by willful alteration of its appearance. For his answer, the defendant filed a general denial and alleged that he purchased the property in good faith and for value. He also pleaded the statute of limitation as a bar to plaintiff's action. The case was tried to a jury, resulting in a verdict for plaintiff upon which judgment was rendered. The case was appealed to the Supreme Court of Oklahoma.
Is the statute of limitation a bar to the replevin action?
The possession of defendant having begun more than two years before the action was instituted the statute was a bar unless there had been fraud or concealment. There was no evidence of fraud. The evidence reflected that the violin was purchased by an established dealer in musical instruments and sold by him to defendant for use of his daughter in taking violin lessons. There was no evidence of any intent to secrete the violin from the view of any one.