A Delayed Auction Raises Legal and Financial Issues
Appeals Court ruled in favor of private owner over the State of South Carolina
By Michael Stillman
An auction took place in South Carolina at the end of September that highlights two issues in the world of book and manuscript collecting, one legal, one financial. The items in question were a group of Civil War letters, including three from Robert E. Lee. For example, on December 27, 1861, Lee wrote South Carolina Governor Francis Pickens, "The strength of the enemy, as far as I am able to judge, exceeds the whole force that we have in the state." In another, Major William Mullins wrote, "But shall I tell you now of the battlefield? Of the dead hideous in every form of ghastly death: heads off, arms off, abdomens protruding, every form of wound, low groans, sharp cries...convulsive agonies as the souls took flight." This was a collection of clear historic significance, still emotionally wrenching after all of this time.
The collection belonged to one Thomas Law Willcox, gathered from the home of his late stepmother seven or eight years ago. They came to his family long, long ago, through Wilcox's great-great uncle, Confederate General Evander Law. Law secured them ahead of Sherman's army, advancing on South Carolina's capital of Columbia. It wasn't until Willcox one day decided to look through the envelopes he had taken that he realized what he had was something special. Three years ago, he planned to offer them at auction, and so began the legal tangle in this story.
In recent years, many states have aggressively pursued their claims to documents long ago purloined from their archives, even though the current owners were far removed from any such taking. A few years ago, the State of North Carolina was able to secure the return of its copy of the Declaration of Independence, confiscated by a returning Ohio soldier at the end of the Civil War. There is no statute of limitations on these claims. However, the claims have now been extended, and in some states such as Texas recognized by statute, to items that disappeared years ago under unknown circumstances. They were not necessarily stolen. The documents may have been thrown away, sold, given away...who knows? If a state can claim it is/was a state document, it may have a case. Such was the belief of South Carolina, which sued Willcox for the papers. They obtained a restraining order the day before the original sale was to take place.
Willcox, who had invested money in appraisals, promptly filed bankruptcy, which allowed him to contest ownership of the papers in the Federal Bankruptcy Court. He lost there, but won on appeal to the Federal District Court. The State responded by appealing that decision, arguing in September of 2006 before the Federal Appeals Court. There, South Carolina lost again. The Appeals Court ruled in a case such as this, without a clear chain of title, eyewitnesses, and the like, it is necessary to look to the "common law," where, the Court noted, "possession is nine-tenths of the law." That put the burden on the State to prove it owned the documents, either through some evidence of title or recent possession. It could show neither.
A Delayed Auction Raises Legal and Financial Issues
Auction was held at Bill Mishoe's Auction in Columbia (image from Mishoe's website).
South Carolina tried one more argument, which may sound something of a caution for others who find themselves in a predicament similar to Willcox. They cited state law declaring public records property of the state. However, the Court found no laws establishing letters once possessed by the Governor were in fact public records. Perhaps the decision would have been different if what Willcox possessed was clearly a public record, such as the State's copy of the Declaration of Independence. South Carolina made one last try, appealing to the U.S. Supreme Court, but that court declined to hear the appeal. This paved the way for the auction that took place on September 29 last.
So the saga had its conclusion at the end of an auctioneer's gavel, as Mr. Wilcox wished, but this proved to be only a semi-happy ending for him. Herein lies the economic issue. Willcox's original appraisal put the value of the collection at $2.4 million. That was perhaps more a retail estimate than an auction one. Still, "expert" opinion led Willcox to believe he would receive something in the area of $2 million for his documents. When the final lot was hammered down, the three Lee letters had sold for $61,000, and the total proceeds were said to be a bit short of $400,000. A fair chunk of that was needed to pay for the appraisal and lawyers. Willcox reportedly expressed disappointment, which would certainly be a rational emotion to feel. Actually, uncontrollable grief would have been more appropriate.
What happened? Well, perhaps the appraisal was a bit generous, the expectations too high. There has been no indication of serious problems with the marketplace. It is true the internet has depressed the value of some books by revealing that "rare" material is not always so rare as once believed, but these were one of a kind documents. And, their subject, the Civil War, remains a strong field.
The auction venue may not have been ideal for material of this caliber. It was held at Bill Mishoe's Auction House and Estate Services of Columbia, South Carolina. That may be in the heart of Dixie, and the original source of this material, but it is not the heart of major collectible auctions. Besides, Mishoe's specializes more in antique furniture and the like, more likely to be purchased by local collectors. If there was a substantial campaign to promote the material, we missed it. Two weeks earlier, a valuable first edition Book of Mormon was auctioned at an obscure house in Geneva, New York, but still brought in a very strong $100,000+ price. However, this was just one item, with a following of a limited number of well-heeled potential buyers. Enough of them found out. This auction included 444 Civil War items, which would appeal to a large but widely dispersed number of collectors. However, it is unlikely all that many were aware, and its location in Columbia, without a bidding website, would have significantly limited the number of potential buyers. Certainly, a collection appraised at $2.4 million, even generously appraised at $2.4 million, should go for more than $400,000. This doesn't make much sense, or cents.