Sunday, October 29, 2006

Civil War Era Letters and Presumptions about Property

Governorfrancispickens_1 Carl Christensen brought Judge Wilkinson's opinion in Willcox v. Stroup to my attention.  It's destined for the first year casebooks.  It revolves around a dispute over who has title to a set of several hundred documents from the administrations of South Carolina governors Francis Pickens (1860-1862) and Milledge Bonham (1862-1864).  The papers had been in the family of Thomas Law Willcox since probably 1865 when his great-great-uncle, a Confederate general, seems to have taken possession of them around February 1865, in advance of General Sherman's attack on Columbia, South Carolina.

MilledgebonhamThe papers, then, were in possession of Willcox and his ancestors for more than 140 years (though in the 1940s they were microfilmed and a microfilm copy was put into the UNC's library, so that they've been available to researchers for decades).  In 2004, as the plaintiff was circling the rim of bankruptcy, he offered them for auction, which attracted the attention of the South Carolina archives.   South Carolina obtained a preliminary injunction against the sale.  Subsequently a bankruptcy judge concluded that the papers belong to the state.  A district court reversed that finding.

Judge Wilkinson resolves the case by concluding that the state of South Carolina failed to meet its burden in showing that it ever had a property right in the papers.  (He rested in part on the adage that "possession is nine-tenths of the law" and then asked South Carolina to overcome that presumption.)  Pretty interesting stuff here. 

I wonder, though, whether a better resolution would have been to leave title to the papers in theplaintiff on adverse possession.  Wasn't South Carolina on notice since the 1940s about the existence of the papers--and even who held them?  I think it's harder to go back and make a statement about the law of South Carolina on ownership of papers prepared by governors than to say South Carolina's claim is barred by adverse possession.

I'm always pleased to see cases that support property rights that vested generations ago.  Reminds me in a lot of ways of the United Daughters of the Confederacy v. Vanderbilt University, another case on which I hope to have something more to say soon.  As I say, I think this one's headed for the casebooks.

Endnote: The illustrations are of Governor Pickens and Governor Bonham.

Alfred L. Brophy
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Adverse possession was not viable in this case. Under the case law in South Carolina, adverse possession cannot be claimed against the State. But, other defenses, most importantly staleness and statute of limitations, were relied on by the District Court, but the Court of Appeals did not rule on these, because the State could not overcome the presumption. But the last part of the opinion indicated those and other defenses were potentially applicable. An absolutely fascinating case in so many ways . . . .

Posted by: Kenneth Krawcheck | Nov 1, 2006 5:17:55 PM

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