To access this feature, please Log In or Register for your Casebriefs Account.

Add to Library




Willcox v. Stroup

Citation. 467 F. 3d 409.
Law Students: Don’t know your Studybuddy Pro login? Register here

Brief Fact Summary.

Plaintiff Willcox found 444 documents, from the administration of governors of South Carolina, involved in the civil war concerning the war and wishes to sell them. Defendant Stroup wishes to prevent this sale claiming the documents are owned by the state of South Carolina.

Synopsis of Rule of Law.

 There is a rebuttable presumption that those in possession of property are the rightful owners of that property. Possession is nine-tenths of the law.


Willcox’s great-great uncle was the Confederate Major General Evander McIver Law. In 1865, Union General William Tecumseh Sherman attacked South Carolina. The Governor of South Carolina, A.G. Magrath declared martial law in Columbia and appointed General Law the Provost Marshal of the City. A large number of records where removed from Columbia for safekeeping. It is assumed that at this time General Law came in possession of the documents, and there is no evidence that he do so illegally. In 1896 General Law tried to sell the documents to a New York Book Dealer. Later in 1940 General Law’s granddaughter had the documents and attempted to sell them to various Universities in South Carolina describing them as documents entrusted to her grandfather at the time of surrender. No sale resulted but the documents where put on microfilm at the Southern Historical Collection at the University of North Carolina. It is unclear how those documents ended in Willcox’s step-mothers closet some 50 years later, where Willcox found the documents; however, these documents it would appear have been in the family for over 140 years. The defendant Stroup is the director of the South Carolina Department of Archives and History obtained a temporary restraining order to prevent the sale. Then Willcox brought this declaratory action to declare title.


 Whether mere possession of documents without clear chain of title or evidence of ownership is sufficient to grant rightful title.


 Yes. The common law property truism that possession of nine-tenths of the law is still good law today. The purpose for this standard is to help the court with undeniable limitations that occur with lack of evidence, and for good public policy to promote stability. It would create havoc if a State where able to claim ownership of all historical documents if the person in possession did not have actual proof of that ownership. This rule is not unfair because this presumption is rebuttable. Parties are allowed to submit chain of title records, eye witness testimony or any evidence to show that ownership is not in the possessor. The standard of review is preponderance of the evidence. The party not in possession is allowed to establish superior title by satisfactory evidence, which did not occur here. Also because these documents are already on microfilm at the University for all to study there is no injustice to the public.


The common law rule that possession shows ownership helps court from insolvable historical problems. The court will not always be able to solve the riddle of who owned the documents. This rule will not always reach a fair result but it is the best resolution for the court to use.

Create New Group

Casebriefs is concerned with your security, please complete the following