Thomas Law Willcox v.  RODGER STROUP, Director, South Carolina Department of Archives

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 THOMAS LAW WILLCOX,
Debtor-Appellee,
and
JOHN M. WILLCOX; KATHRYN
WILLCOX PATTERSON,
Defendants-Appellees,
v. No. 06-1179 
RODGER STROUP, Director, South
Carolina Department of Archives
and History; STATE OF SOUTH
CAROLINA ex rel. Henry McMaster,
Attorney General for the State of
South Carolina,
Defendants-Appellants. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(2:05-cv-02788-PMD; 04-09605-JW)
Argued: September 20, 2006
Decided: October 27, 2006
Before WILKINSON and NIEMEYER, Circuit Judges, and
Henry E. HUDSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Niemeyer and Judge Hudson joined.

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COUNSEL
ARGUED: James Emory Smith, Jr., Assistant Deputy Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAR-
OLINA, Columbia, South Carolina, for Appellants. Kenneth Charles
Krawcheck, Charleston, South Carolina, for Appellees. ON BRIEF:
Henry D. McMaster, Attorney General, Robert D. Cook, Assistant
Deputy Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellants.
OPINION
WILKINSON, Circuit Judge:
This case concerns the ownership of papers from the administra-
tions of two governors of South Carolina during the Civil War.
Debtor-plaintiff Thomas Law Willcox sued in United States Bank-
ruptcy Court for a declaratory judgment that the papers were part of
his estate. Defendant South Carolina contends that the papers are pub-
lic property. The bankruptcy court held for the State. The district
court reversed, holding that the State failed to establish that the papers
constituted public property under South Carolina law of the Civil War
era. Because the long possession of the papers by the Willcox family
creates a presumption of ownership in their favor and the State has
adduced insufficient evidence to defeat this presumption, we affirm.
I.
The debtor-plaintiff is Thomas Law Willcox ("Willcox"), a South
Carolina resident whose family has lived in the state for many years.
The defendants are Rodger Stroup, Director of the South Carolina
Department of Archives and History, and the State of South Carolina
(collectively "State"). Willcox’s ownership claims against two other
defendants, his sister Kathryn Willcox Patterson and cousin John M.
Willcox, await the outcome of this proceeding.
At issue in this case are approximately 444 documents from the
administrations of South Carolina Governors Francis Pickens (1860-
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62) and Milledge Bonham (1862-64). As the district court described
them, "The Documents, which date from between December 1860
and August 1864, concern Confederate military reports, correspon-
dence, and telegrams between various Confederate generals, officers,
servicemen, and government officials, and related materials. The
Documents also address a wide variety of official duties of the Gover-
nor during that time period. . . . [T]he court adopts the Bankruptcy
Court’s finding of fact that the Documents are properly described as
Governor’s records relating ‘to matters of military significance, police
powers, as well as to other duties of the Governors during the relevant
time period.’" The collection has been appraised at $2.4 million.
Willcox found the papers in 1999 or 2000 in a shopping bag in a
closet at his late stepmother’s home. After finding the papers, Willcox
sold a few of them to various individuals and gave two to his wife.
In May 2004, Willcox scheduled an auction for August 7, 2004 to sell
the remaining documents. The auctioneer publicized the upcoming
sale and was contacted by defendant Stroup, who sought permission
to microfilm the papers for the State Archives prior to auction. Will-
cox authorized the copying, and the papers were microfilmed. On the
day before the auction, August 6, 2004, Stroup and the Attorney Gen-
eral’s Office for the State of South Carolina obtained a temporary
restraining order in state court enjoining the sale of the papers.
On August 16, 2004, Willcox filed for Chapter 11 bankruptcy pro-
tection in the United States Bankruptcy Court of the District of South
Carolina. Willcox then filed a complaint in the bankruptcy court seek-
ing a declaratory judgment that the papers were property of the bank-
ruptcy estate. After a two-day bench trial, the bankruptcy court held
the State to be the owner of the papers under South Carolina law. The
district court reversed.
Regarding the papers’ history, the bankruptcy and district courts
found, and we adopt, the following facts. The papers seem to have
come into Willcox’s family through his great-great-uncle, Confeder-
ate Major General Evander McIver Law, who most likely came into
possession of them during the February 1865 attack on the South Car-
olina capital by Union General William Tecumseh Sherman. On Feb-
ruary 15, 1865, in anticipation of imminent attack, Governor A.G.
Magrath declared martial law in Columbia and appointed General
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Law the Provost Marshal of the city. On February 16, 1865, a large
number of State archives and records were removed from Columbia
for safekeeping. On February 17, 1865, General Law was relieved of
his duties as Provost Marshal, and General Sherman took control of
Columbia. The parties submit no direct evidence of how General Law
came into possession of the papers, nor is there any suggestion that
he did so illegally.
On February 16, 1896, General Law wrote a letter to a New York
book dealer regarding the sale of some letters which, both parties
agree, appear to belong to the collection at issue here. By the 1940s,
Mrs. Annie J. Storm, the granddaughter of General Law, was in pos-
session of the papers and attempted to sell them to both the University
of North Carolina at Chapel Hill ("UNC") and the South Caroliniana
Library of the University of South Carolina. Mrs. Storm described the
documents as "original State House papers entrusted to [her] grandfa-
ther at the time of the surrender." No sale resulted, but the papers
were placed on microfilm at the Southern Historical Collection at
UNC.
No evidence has been submitted of the papers’ movements
between the time of the Storm correspondence and plaintiff Willcox’s
discovery more than fifty years later. The point for present purposes
is simply that, while the precise route by which Civil War-era guber-
natorial papers arrived in a shopping bag in Thomas Law Willcox’s
stepmother’s closet remains a mystery, it appears that the papers have
been in the possession of the Law and Willcox families for over one
hundred and forty years.
The district court had jurisdiction over the initial appeal under 28
U.S.C. § 158(a). We possess appellate jurisdiction under 28 U.S.C.
§ 158(d). "[W]e review the bankruptcy court’s factual findings for
clear error, while we review questions of law de novo." Logan v. JKV
Real Estate Servs. (In re Bogdan), 414 F.3d 507, 510 (4th Cir. 2005).
II.
The exceptional nature of the papers in dispute — their early vin-
tage, their unknown history — presents issues distinct from those of
the typical personal property case. Without the benefit of clear chain
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of title, evidence of original ownership, eyewitness testimony, and
any number of documentary aids usually helpful in the determination
of ownership, the court must utilize the legal tools that remain at its
disposal. In this situation, tenets of the common law that usually
remain in the background of ownership determinations come to the
forefront, their logic and utility revealed anew.
That possession is nine-tenths of the law is a truism hardly bearing
repetition. Statements to this effect have existed almost as long as the
common law itself. See Oxford English Dictionary (draft rev. 2003)
(citing a 1616 collection of adages for "Possession is nine points in
the Law"). See also Frederick Pollock & Robert Samuel Wright, An
Essay on Possession in the Common Law 5 (1888) ("[I]n the eyes of
medieval lawyers . . . Possession largely usurped not only the sub-
stance but the name of Property.").
The importance of possession gave rise to the principle that
"[p]ossession of property is indicia of ownership, and a rebuttable
presumption exists that those in possession of property are rightly in
possession." 73 C.J.S. Property § 70 (2004). The common law has
long recognized that "actual possession is, prima facie, evidence of a
legal title in the possessor." William Blackstone, 2 Commentaries
*196. See, e.g., Edward Coke, 1 Commentary upon Littleton 6.b.
(19th ed. 1832) (strong presumption of ownership created by "con-
tinuall and quiet possession"); Jeffries v. Great W. Ry. Co. (1856) 119
Eng. Rep. 680 (K.B.) ("[T]he presumption of law is that the person
who has possession has the property.").
This presumption has been a feature of American law almost since
its inception. "Undoubtedly," noted the Supreme Court, "if a person
be found in possession . . . it is prima facie evidence of his owner-
ship." Ricard v. Williams, 20 U.S. (7 Wheat.) 59, 105 (1822). Almost
eighty years later, the Court reaffirmed, "If there be no evidence to
the contrary, proof of possession, at least under a color of right, is suf-
ficient proof of title." Bradshaw v. Ashley, 180 U.S. 59, 63 (1901).
See also, Oliver Wendell Holmes, The Common Law 241 (1881)
("The consequences attached to possession are substantially those
attached to ownership, subject to the question of the continuance of
possessory rights. . . .").
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In South Carolina law, too, it is well established that, absent evi-
dence of superior title, "[t]he law ever presumes in favor of posses-
sion, for possession alone is prima facie evidence of a good title."
Gourdin v. Theus, 5 S.C.L. (3 Brev.) 153, 171 (S.C. Const. 1808).
See, e.g., Stephenson Fin. Co. v. Wingard (Ex parte Dort), 121 S.E.2d
1, 3 (S.C. 1961); Jackson v. Frier, 144 S.E. 66, 69 (S.C. 1928);
Thompson v. Chapman, 93 S.E. 142, 143 (S.C. 1917). In this case, the
possession of the Law and Willcox families triggers the presumption
of their ownership of the papers.
The presumption of possession is not confined to the early nine-
teenth century, nor is it confined to examples of early Americana.
Rather, it applies across the law of personal property. See, e.g., Nes-
bitt v. Lewis, 517 S.E.2d 11, 14 (S.C. Ct. App. 1999) (ownership of
dog); Hammond v. Halsey, 336 S.E.2d 495, 497 (S.C. Ct. App. 1985)
(ownership of cannon); Clanton’s Auto Auction Sales, Inc. v. Harvin,
120 S.E.2d 237, 239 (S.C. 1961) (ownership of automobile). The
unusual circumstances of this case do, however, provide a notable
illustration of why such a presumption exists in the first place.
First and foremost, the presumption operates to resolve otherwise
impenetrable difficulties. Where neither party can establish title by a
preponderance of the evidence, the presumption cuts the Gordian
knot, determining ownership in favor of the possessor. This case
shows the need for such a default rule. It presents questions the
answers to which remain a mystery. Little is known of the papers’
whereabouts, status, or movements from their creation to their acqui-
sition by General Law. There is no evidence of how General Law
acquired the papers. Not even the chain of possession within the Law
and Willcox families has yet been determined with any certainty. In
fact, in over one hundred and forty years of existence, these papers
have apparently surfaced in the historical record only three times: in
General Law’s 1896 correspondence, in Annie Storm’s 1940’s corre-
spondence, and in the current litigation.
This case thus poses questions which we are ill equipped to answer.
Fortunately, however, the common law reveals its usefulness even in
the acknowledgment of its limitations. The presumption of ownership
from possession locates the parties’ burdens. Where the party not in
possession is able to establish superior title by satisfactory evidence,
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the presumption gives way in favor of this evidence. But where no
such evidence is produced — where, as here, the events at issue are
impossible to reconstruct — the presumption recognizes and averts
the possibility of a court’s presiding over a historical goose chase. See
Richard A. Posner, Economic Analysis of Law 78 (6th ed. 2003).
Second, the presumption of ownership in the possessor promotes
stability. "It is the policy and even the duty of the law, to have per-
sonal property vested as early as practicable." Collins v. Bankhead, 32
S.C.L. (1 Strob.) 25, 29 (S.C. Ct. App. 1846). The presumption of
ownership from possession is one of an array of legal principles
designed to this end. The presumption means that, absent proof to the
contrary, settled distributions and expectations will continue undis-
turbed. Even where evidence overcomes the presumption, other prin-
ciples work to protect settled expectations, including the statute of
limitations, the doctrine of adverse possession, and equitable defenses
such as laches, staleness, abandonment, and waiver.
Such principles, working in concert, favor status-quo distributions
over great upsets in property rights. At the most basic level, this fos-
ters "the policy of protecting the public peace against violence and
disorder." See Sabariego v. Maverick, 124 U.S. 261, 297 (1888). In
contemporary commercial society, it protects the expectations of
those in possession, thus encouraging them to make improvements
that increase social wealth. See, e.g., Richard A. Posner, Economic
Analysis of Law 80-84 (6th ed. 2003); Thomas W. Merrill & Henry
E. Smith, What Happened to Property in Law and Economics?, 111
Yale L.J. 357, 398 (2001) ("[T]he refined problems of concern in
advanced economies exist at the apex of a pyramid, the base of which
consists of the security of property rights."). Without rules such as the
presumption of ownership, whether public or private, such valuable
goals would give way to uncertainty.
In this case, the resulting confusion is not difficult to imagine. If
the State were not required to defeat the presumption in order to gain
title, a whole system of archival practice could be thrown into ques-
tion. The State could claim ownership of other papers of Governors
Pickens and Bonham held by the Library of Congress and Duke Uni-
versity, as well as papers of other South Carolina governors currently
at institutions other than the State Archives. The result would be
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immense litigation over papers held by private owners, universities,
historical societies, and federal depositories. It would upset settled
archival arrangements and the expectations of institutions and histori-
cal scholars alike. Disregard of possession as presumptive evidence
of ownership would throw the whole of this important area into tur-
moil.
Finally, while it has never been the practice of federal courts to
ignore the law in favor of equitable considerations, see E. Tenn. Natu-
ral Gas Co. v. Sage, 361 F.3d 808, 823 (4th Cir. 2004), it is worth
noting that the employment of the presumption in this case in no way
frustrates the public interest. Here, private possession does not shut
the papers off from access by scholars or, indeed, by the interested
public. They have been available for study for decades on microfilm
at the University of North Carolina at Chapel Hill, and through the
permission of plaintiff Willcox the South Carolina Department of
Archives and History now also has a copy on microfilm. The papers
are thus freely available for perusal and study regardless of who owns
the originals. And, of course, if the State values possession of the
original documents, it may acquire them on the open market.
In short, the common law, through the presumption of ownership
in the possessor, resolves otherwise insoluble historical puzzles in
favor of longstanding distributions and long-held expectations. Such
a rule both protects the private interests of longtime possessors and
increases social utility. Of course, this presumption will not always
cut in one direction. In many instances, the State will possess the
papers, and it will then be entitled to the strong presumption that the
private party claims here. In this case, however, where the Law and
Willcox families have been in possession for well over a century, the
presumption favors plaintiff Willcox.
III.
Having recognized the presumption in favor of Willcox’s owner-
ship, the court must consider whether the State has rebutted this pre-
sumption. Under South Carolina law, the burden is on the party not
in possession to prove title superior to that of the possessor. See Ham-
mond, 336 S.E.2d at 497. In most cases, the party not in possession
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would attempt to meet its burden through factual evidence, such as
evidence of title or of recent prior possession.1
In this case, the State has been unable to provide such evidence.
There is no documentary evidence of the State’s title, nor is there evi-
dence of its recent possession. While there is no suggestion that the
Law and Willcox families are bona fide purchasers, since no purchase
was involved, there is also no indication that they acquired the papers
in bad faith. In any case, the State’s burden may not be met by chal-
lenging the sufficiency of the possessor’s title but only by proving the
superior strength of its claim. See id.
Given the insufficient factual evidence,2 the State’s remaining
argument for ownership is that, under the law at the time of the docu-
ments’ creation (1860-64) or their acquisition by General Law (1865),3
1The presumption of ownership from possession gives way to evidence
of superior title. See Gourdin, 5 S.C.L. at 171 ("But whenever the claim-
ant shews a legal title, the evidence of possession alone, unsupported by
any written document, ought not to prevail. The presumption of a good
title is rebutted; and other evidence than mere possession, becomes nec-
essary.").
Even if the State had been able to show evidence of superior title,
however, that would not be the end of the matter. After the party out of
possession establishes superior title, the possessor may still raise a num-
ber of defenses, including the statute of limitations and equitable
defenses such as staleness, laches, waiver, and abandonment. See, e.g.,
O’Keeffe v. Snyder, 416 A.2d 862 (N.J. 1980) (artist barred from
reclaiming stolen paintings where she did not diligently pursue recovery
of stolen works).
2The State attempts to argue that because, as a factual matter, the
papers were produced during the administrations of two South Carolina
governors, they are of necessity public property. This argument begs the
question. The content of the papers and the conditions of their production
are not in dispute. The entire question is whether gubernatorial papers
such as these constitute public property. That the papers were produced
in an official context is simply insufficient to demonstrate title.
3The parties have made arguments relating to both time periods. The
district court framed the question in terms of the law at the time of the
documents’ creation but also considered the state of the law in 1865, the
time of their likely acquisition by General Law. Because the two events,
creation and acquisition, occur within a matter of years of each other, the
choice between them does not affect the outcome.
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they were public property. South Carolina law of the relevant time
period provides no basis for the State’s claim of ownership.
A.
South Carolina case law does not suggest that such papers were
public property during the Civil War era. Pinckney v. Henegan, 33
S.C.L. (2 Strob.) 250, 252 (S.C. App. L. 1848), merely stated that
"[t]he public records in the Secretary of State’s office do not belong
to the Secretary; they are property of the State." The case did not refer
to governors’ papers or otherwise explain the nature of the records on
file in the Secretary’s office. It simply stated that public records are
public property. This proposition does not elucidate the underlying
question of what documents qualify as public records.
The other cases cited by the State were decided years after the time
period in question. See, e.g., Sternberger v. McSween, 14 S.C. 35
(S.C. 1880); In re Whipper, 10 S.E. 579 (S.C. 1890); State ex rel. Hay
v. Farnum, 53 S.E. 83 (S.C. 1905). As such, they are of questionable
relevance to the common law as it existed in the early 1860s. In addi-
tion, the cases all concern other types of records than papers of execu-
tive officials. Unlike deeds of property or birth and death certificates
or creditors’ liens, see Sternberger, 14 S.C. at 38, or bills of indict-
ment, see State v. West, 229 S.E.2d 826 (N.C. Ct. App. 1976), gover-
nors’ records have both public and private aspects. Cases involving
other types of records shed limited light on whether the gubernatorial
papers in question were public property.
B.
South Carolina statutory law does not indicate that gubernatorial
papers were public property at the relevant time. The State cites a
1719 statute addressing the preservation of public records and provid-
ing penalties for individuals who had "made away" with various
records. See Act No. 405 of 1719, 3 S.C. Stat. at Large 98 (1838). The
State also cites a 1789 act providing for the removal of public records
to Columbia under the supervision of the governor. See Act No. 1448
of 1789, 5 S.C. Stat. at Large 102 (1839). Citation of such statutes,
however, again begs the question of what documents were considered
to be public records in the first place.
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In addition, the State cites numerous nineteenth-century statutes, as
well as the 1790 and 1861 Constitutions of South Carolina, which
required the governor to submit various reports to the legislature. See,
e.g., S.C. Const. of 1790, art II § 12; S.C. Const. of 1861, art II § 12;
Act No. 2886 of 1843, 11 S.C. Stat. at Large 270 (1873); Act No.
4567 of 1861, 13 S.C. Stat. at Large 4 (1875); Act No. 4700 of 1864,
13 S.C. Stat. at Large 199 (1875). While these requirements might
make it necessary for the governor to keep accurate records, they are
not relevant to the question of the ownership of such records, let alone
gubernatorial papers more broadly.
The State also references two statutes passed after the events in
question. First, an Act passed by the South Carolina legislature in
December 1865 provided that future governors were to have a "suit-
able office" called the Executive Chamber, in which all papers associ-
ated with their administration were to be kept. See Act 4754 of 1865,
13 S.C. Stat. at Large 340 (1875). The Act also provided that the Sec-
retary of State was to "collect, deposit and keep in Columbia all the
books, records, and papers heretofore belonging [to the Executive
Chamber]." Id. The passage of this law in December of 1865 strongly
suggests that, prior to that time, such papers were not so regulated.4
In addition, the Act sheds no light on the question of what papers
"heretofore" belonged to the Executive Chamber, and the State has
provided no evidence that, prior to the passage of this Act, the papers
at issue would have belonged to that category.
Second, the current South Carolina Public Records Act, S.C. Code
Ann. § 30-1-10 et seq. (1991 & Supp. 2005), provides for the mainte-
nance of certain public records. This Act, which first appeared in the
South Carolina Code of Laws in 1962, cannot possibly support the
State’s characterization of the law as it existed in the Civil War era.
Whether the Act’s definition of "public record" even now includes
records of the governor’s office is a question we need not address. See
S.C. Code §§ 30-4-20(a),(c).
4We need not consider what effect the December 1865 Act had on
gubernatorial papers going forward. The Act provides that all papers
generated during a governor’s administration should be kept in the Exec-
utive Chamber during that administration, but it does not explicitly state
what should become of those papers at the close of an administration.
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C.
Moreover, the nineteenth-century understanding of South Carolina
common and statutory law appears to support this court’s interpreta-
tion. While the State Archives has at least some records of almost
every South Carolina governor since 1860, of all the State’s gover-
nors from the colonial period through 1866, the Archives contains the
original papers of only one, Governor Edward Drayton (1800-02,
1808-10). Governor Drayton, in fact, complained to the legislature of
the "careless" approach to state papers and proposed that the legisla-
ture pass a law requiring governors to maintain indexed journals for
their successors. No such law was passed. Later governors continued
to exercise control over their papers. A letter of May 11, 1883, from
former Governor Magrath, governor at the time of Sherman’s attack,
to former Governor Bonham, some of whose papers are in dispute
here, suggests that some of Governor Magrath’s papers were returned
to him by a later governor. The letter also states that Governor Pick-
ens, the other governor whose papers are in dispute in this case, had
many of his papers in his personal possession. This evidence suggests
that governors of the Civil War era may have assumed private posses-
sion and control of gubernational papers.
Even in the twentieth century some South Carolina governors made
donations of their papers more consistent with private than public
ownership. Governor Strom Thurmond (1947-51) donated his papers
to Clemson University. Governor Ernest F. Hollings (1959-1963)
donated a portion of his papers to the University of South Carolina,
as did Governor Robert McNair (1965-71). These donations suggest
that even twentieth-century South Carolina governors have exercised
a right of transfer over their papers, a right at the core of the bundle
of rights known as property ownership. See Black’s Law Dictionary
1138 (8th ed. 2004).
In this respect, the practice in South Carolina accords with com-
mon law practice more generally. Presidential papers, for example,
were considered private property from the time of George Washing-
ton, who following his second term removed his papers to Mount
Vernon and bequeathed them in his will to his nephew, Supreme
Court Justice Bushrod Washington. See Nixon v. United States, 978
F.2d 1269, 1278 (D.C. Cir. 1992). Jefferson, Madison, and Monroe
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also bequeathed their papers as private property by will. See id. When
Congress first provided public funding for presidential libraries, such
libraries depended upon former presidents to deposit their papers vol-
untarily. See Presidential Libraries Act of 1955, Pub. L. No. 84-373,
69 Stat. 695 (codified as amended at 44 U.S.C. § 2112 (2000)).
For Congress to change this private ownership regime required a
law prospectively granting the United States "complete ownership,
possession, and control" of official presidential records. See Presiden-
tial Records Act of 1978, 44 U.S.C. § 2201 et seq. (2000) (imple-
menting process for archiving records and making them publicly
available as soon as possible, subject to exceptions for confidential
and privileged materials). A previous law, the Presidential Records
and Materials Preservation Act of 1974, Pub. L. 93-526, 88 Stat.
1695, which exerted federal control over former President Nixon’s
papers in the wake of the Watergate scandal, was determined to have
effected a per se taking of President Nixon’s property interest in his
papers. See Nixon, 978 F.2d at 1284.
We conclude that the State has failed to establish that South Caro-
lina law at the relevant time treated gubernatorial papers as public
property. This conclusion leaves the State with no basis upon which
to rebut the strong presumption of possession in the Law and Willcox
families and no basis upon which to claim title superior to that of
plaintiff Willcox. We note that the district court further held that "the
State is barred from asserting an ownership interest in the Documents
due to the running of the statute of limitations and staleness." While
we have no reason to question this aspect of the district court’s ruling,
the State’s failure to establish superior title renders it unnecessary to
address it.
The judgment of the district court is hereby affirmed.
AFFIRMED
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