Finder's Keepers, or do you have to give your horse back?

As mentioned in my earlier post, I want to address the issue of returning a horse to a previous owner, which arose from the story of a mare that was used at a testing facility.

According to the article, seven years ago the mare's owner left her at a boarding facility with a breeding agreement (this is not uncommon; in lieu of paying board and maintenance, some owners will permit another party to use their mare as a broodmare).  When the owner tried to retrieve her horse at the end of the year, the owner of the barn and the mare had vanished.
Little did the owner know that her mare had become a test mare for testing imported stallions for STDs (see my previous post on that topic!).
Sometime later, a person working with a horse rescue organization came across this mare at a state horse sale and purchased her for $200 in July 2011 (the article said the horse was bound for slaughter).  The horse rescue shared photos of the mare on its facebook page as a horse available for adoption; in October the mare's original owner called the rescue and cried, "I think you have my horse."
The owner and mare were soon happily reunited.

In this instance, the story is heartwarming- but what if the mare had been purchased by someone who fell in love with her, invested time, money, and energy into rehabilitating and training her- and wanted to keep her forever, without any intent to adopt her out or sell her to a new family?


According to the story, this mare was not abandoned property (voluntarily giving up possession with the intent to give up title and control), but the mare could be classified as lost property: the owner's  parting with the mare was accidental and involuntary.
The general rule of lost property is that the finder of the lost property wins.

But that seems an overly simplified answer, so I considered the argument that the purchaser of the mare at the state sale was a bona fide purchaser for value (BFP): someone who in good faith purchases property for value, without notice of any adverse claim against the property.

While bona fide purchasers for value are treated differently based on the area of law (such as commercial paper, real property, personal property, etc.), and vary according to different state laws, in general, public policy strives to protect the innocent party, which in this case would be the purchaser of the mare.
While the original owner would lose her mare under this policy, the law upholds the idea that it is better to put the responsibility on the owner to protect her mare/ her property, than to punish an innocent buyer.

If you in good faith paid $50,000 for a horse, fell in love with it, improved its training, and perhaps decided to use it for breeding or for your future children to ride- and then someone comes along 6 years later and wants the horse back- I imagine you would feel that the horse belongs to you!
Such a situation could be governed by accession rules: when someone takes the property of another, either wrongfully or not, and then does something to make that property more valuable.

In general, if the person who increased the value is innocent (like a BFP), and the increase to the property is GREAT, then the one doing the innocent accession keeps the property- but if the accession isn't of great value, then the property has to be given back.
In the context of the mare, if you turned her $200 value into a $20,000 mare, you would most likely get to keep her, but the court may decide you would have to pay the original owner the $200 value of the mare before the accession.

Whew, a lot of concepts! Abandoned or Lost Property, Bona Fide Purchaser, Accession Value... the eternal problem with the legal treatment of horses as property is the grey area of what is fair or what is right- it is the element of emotional attachment.
Imagine if the woman who had purchased the mare for $200 had fallen in love with her and didn't want to give her back- this story certainly would not have a heartwarming ending.

If you innocently bought an auction horse, fell in love with the horse, spent hours and money in training and showing the horse- and then a prior owner comes along 5-10 years later- would you be willing to give the horse back with no strings attached?
If you were the previous owner whose horse disappeared- would you expect the innocent new family to give the horse back to you?
It is certainly something to ponder, and hope that we are never caught in such a situation!

Stallions and the Law: Impregnation, Castration, Importation

In an earlier post I shared the story of a rescue mare that had been used as a test mare for imported stallions.  The method raised some issues: was it really best practices to breed healthy mares to the imported stallions as the means to test for venereal diseases (more specifically, CEM)?

Dr. Knopf castrating a donkey patient named Eeyore

I briefly mentioned the controversy to (Ribbons and Red Tape's resident veterinarian!) Dr. Knopf (see her blog posts here and here).  Prior to private practice Dr. Knopf helped perform foreign stallion entrance exams at the U.C. Davis CEM quarantine facility.  Dr. Knopf told me that:

1. Spayed mares under hormones are used for the testing (so there is no chance of pregnancy) 
2. There is no blood test for the disease
3. The stallion and the bred mare are cultured several times to ensure no evidence of the  bacteria 
4. The disease is highly contagious and could be severely damaging to the equine industry if spread through breeding
5. It is treatable, and a horse that is CEM positive can eventually be certified CEM negative.

Testing for CEM:
"Contagious equine metritis is a transmissible venereal disease of horses caused by the bacterium Taylorella equigenitalis. Undetected carrier mares and stallions are the source of the organism for acute outbreaks. Clinical signs of CEM are only manifest in the mare, never in the stallion. Because infection is often asymptomatic in mares, the disease can be difficult to detect and control. Initial infection in mares results in a period of temporary infertility, with or without signs of genital inflammation." (emphasis added)

Testing of imported stallions is legally required and is governed by the United States Department of Agriculture (USDA).  ALL imported horses (mares, geldings, etc.) are required to be in a minimum of 72 hours at a USDA quarantine facility at the port of entry (Miami, New York, or Los Angeles).  And secondly:

"[A second quarantine is not required if a stallion hasn't been in a country] where CEM is known to exist, nor have had any contact, breeding, or otherwise with horses from such country for the 12 months immediately preceding exportation. Intact horses that do not meet this requirement AND are older than 731 days of age must enter a second quarantine for CEM testing."

Eeyore after surgery, a changed man

I think the root of the controversy from this story is that it seems like the mares are being used (as one blogger noted), "like lab rats."  However, we can't fail to overlook the enormous importance of testing for this disease.  Some stallions breed to upward 100 mares a season, and if the stallion were to carry the disease, the results would be absolutely devastating to the equine community.  There was an outbreak of CEM in Kentucy in 1977, with an effect of nearly $4 million in losses to the Thoroughbred breeding industry.  The spread of equine influenza in Hong Kong in 1986 resulted in an approximate $1 billion impact on the equine industry.

Secondly, I think there is controversy over the case because after the mare was no longer a test mare, she was intended to be sent to slaughter.  Slaughter strikes a chord in horse aficionados.

And finally, I think there is controversy over the story because it seemed outrageous that this girl's horse would disappear without her consent, be sent into testing, and recovered only by chance 6 years later.  That is a horse owner's nightmare!  More on this last point in my next post (would you have to give the horse back to the original owner?)

Great information received from the UC Davis information booklet on quarantine of imported horses, which can be read online here.

Testing for Equine Diseases and Ownership of a Test Mare

Interesting fact: apparently Iceland prohibits importation of foreign horses, or the return of exported horses

I read this story yesterday (which I found on the blog If Wishes Were Horses, always an interesting read!); there is a text and video story about a particular mare.  
In quick summary, according to the article, when non-U.S. stallions are brought to the country they are tested for Sexually Transmitted Diseases (STDs) by being bred to healthy mares.  The mares conceive, the embryo is deliberately aborted, and if the mare contracts the disease then it is known that the stallion is infected and it cannot be used for U.S. breeding.
One of these "test mares" was discarded from the testing center and was bound for slaughter; a rescue organization saved her from a kill pen, and through the organization's facebook page, the original owner identified her mare (6 years later) and the two were reunited!

The story gave rise to a number of legal implications, the two I want to address in following blog posts are:
1. While in this case it is a rescue who purchased the mare, if it were a private party, would you have to give the horse back to the original owner?
2. The legality of the method of testing

Do you have any particular insights (or questions) into either of these issues? 

Checks and You, and the Dubious Dealer of Horse Trailers

Commercial Paper is a topic on the Kentucky bar- I did not take this course in school, and much of the language was initially unfamiliar.  To help learn the concepts I applied some of them to a horse situation, naturally!

Here is one:

A note is a three party monetary instrument, most commonly known as a check from your checkbook (the parties are you, your bank, and the person you are writing the check to.)

Consider this scenario: you purchase a horse trailer for $5,000 by writing a check to the trailer dealer, you hitch up, and go on your merry way.  Meanwhile, the dubious dealer sits under a swinging solitary lightbulb and deviously adds an extra 0 to the check, and changes the wording of the amount, so that by all appearances you have written a check for $50,000 for the trailer.   If the dealer demands that you pay the larger amount- how much must you pay him? Nothing! $0!  The dubious dealer's fraudulent alteration allowed Full Discharge of the amount owed.

Source: a site with a brief description of horse trailer insurance

Consider, however, that the trailer dealer doesn't ask you to pay the $50,000 but negotiates the note (i.e., sells the check) to a collections company that has no knowledge that the original amount of the check was only $5,000 and not $50,000 (in California we often call these innocent buyers a "bona fide purchaser," but in the commercial paper world, they are "holders in due course.")  The agency then asks you to pay up- how much do you owe?  The original amount of $5,000.  Because the collections company paid for the check in good faith with no knowledge of dubious dealer's fraud, it can enforce the check on its original terms.

Lessons- take all steps possible to enter business agreements with reputable persons, always take a receipt, record the amount you paid, always check your monthly bank statements, and above all- make sure you always fill out a check completely (more on that last point later).