State of Maine v. Adams

PRESENT: All the Justices

STATE OF MAINE

v. Record No. 080987 OPINION BY
JUSTICE BARBARA MILANO KEENAN
February 27, 2009
RICHARD L. ADAMS, JR.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge

This appeal concerns an action to quiet title to a copy of

the Declaration of Independence (the Declaration) that was

printed in July 1776. We consider whether the circuit court

erred in holding that a Virginia resident who purchased this

document had superior title than that claimed by the State of

Maine, which contended that the document was a public record

owned by the Town of Wiscasset, Maine.

In July 1776, after the Second Continental Congress

approved the Declaration of Independence, each of the colonial

delegations was charged with informing its residents about the

colonies’ decision to separate from England. The Massachusetts

Executive Council (the Executive Council), an entity that shared

governing responsibility with the Massachusetts legislature,

issued an order directing that copies of the Declaration be

printed and delivered to the ministers of all churches in
Massachusetts so that the document could be read to the

ministers’ congregations. 1

The Executive Council commissioned E. Russell, a private

printer in Salem, Massachusetts, to print these copies of the

Declaration. Such copies of documents intended for widespread

distribution were commonly referred to as “broadsides.”

The broadsides that Russell printed contained the

Declaration’s text and the Executive Council’s order directing

distribution and promulgation of that document. The broadsides

also included the Executive Council’s additional order requiring

that the ministers, after reading aloud the Declaration, deliver

the broadsides to the town clerks. The order directed the town

clerks to record the Declaration’s text in their respective town

record books “to remain as a perpetual Memorial thereof.”

Neither the Executive Council’s order nor any other law directed

the town clerks regarding the proper disposition of the

broadsides after their contents were transcribed in the town

record books.

The broadside at issue in this case (the print) bears a

handwritten notation on its reverse side stating that the print

was delivered to the Reverend Thomas Moore in the Town of

Pownalborough and read to his congregation. An additional

1
In 1776, Massachusetts encompassed an area of land that
today includes both Massachusetts and Maine.

2
notation indicates that the Reverend Moore later delivered the

print to the Reverend John Murray, pastor of a church in Booth

Bay, Massachusetts, about 11 miles from Pownalborough.

Also appearing in handwritten text on the reverse side of

the print is the following notation:

To [Pownalborough] Town Clerk according to the with in
[sic] Authority having read the within Proclamation. I
return it to you to be Recorded as ye law directs. Thos.
Moore. Pownalborough October 19th, 1776.

On November 10, 1776, Edmund Bridge, the town clerk of

Pownalborough, transcribed the text of the Declaration into the

official town book in accordance with the Executive Council’s

order.

There is no direct evidence regarding the location of the

print in the years immediately after Bridge recorded the text of

the Declaration. However, certain handwritten entries on the

reverse side of the print state: “from 1776 to 1784 Warrants

[etc.],” “Town Warrants [etc.],” “Pownalborough,” “Declaration

of Independence, July 1776,” and “Loose Papers no Taxes.”

The location of the print remained unknown until 1995, when

Harold Moore, an auctioneer hired by the estate of Anna Holbrook

Plumstead (Anna), discovered the print in the attic of Anna’s

home in Wiscasset, Maine. The print was folded in a box

containing minutes from a Pownalborough town meeting held in

1795, personal family receipts, and other papers unrelated to

3
town business. Wiscasset, Maine (the town) was formerly known

as Pownalborough, Massachusetts. The town’s name was changed

from Pownalborough to Wiscasset in 1802, and Maine became a

state in 1820.

Anna was the daughter of Solomon Holbrook, who served as

the town clerk from 1885 until his death in 1929. Pownalborough

and Wiscasset have had a total of 41 town clerks during the

period between 1760 and the date of trial, and Holbrook was the

28th clerk in order of service to hold that position. Although

Holbrook once owned Anna’s house where the print was found,

Holbrook never lived in that house.

After Harold Moore discovered the print in Anna’s house in

1995, Seth Kaller of Kaller Historical Documents, Inc. purchased

the print at auction for $77,000. In 2001, Kaller sold the

print to Simon Finch, a rare book dealer in London, England, for

$390,000. In 2002, Richard L. Adams, a Virginia resident,

purchased the print from Finch for $475,000.

In 2005, the State of Maine (Maine), on behalf of the town,

sought to recover the print from Adams based on Maine’s

assertion that the print was a public record owned by the town.

Adams filed an action in the circuit court to quiet title to the

print contending that he was its lawful owner. The case

proceeded to a bench trial.

4
 The evidence at trial showed that until 1967, the

Pownalborough and Wiscasset town clerks performed the duties of

their part-time position from their homes. In 1967, the town

began conducting its business from a public town office. The

current town clerk testified that although a library was built

in the town in 1805, it is unknown when the library began

storing certain town records that now are housed there.

Jonathan S. Kiffer, Senior Vice President of Sotheby’s,

testified as an expert on the subject of rare documents created

around the time the print was made. Kiffer stated that

broadsides like the print in question were printed as news

releases or bulletins and were in the category of documents

referred to as “ephemera,” or items produced to serve only a

brief purpose. According to Kiffer, once the news contained in

a broadside was disseminated, the broadside had fulfilled its

purpose and could be discarded.

Maine presented the expert testimony of Albert H. Whitaker,

Jr., a former Massachusetts State Archivist who was familiar

with colonial records. Whitaker stated that in his opinion, the

standard practice for a town clerk in 1776 would have been to

retain the print as a town record. Whitaker testified that he

based his opinion on the fact that the print was directed to the

town clerk’s attention and the town clerk actually received the

print.

5
 Whitaker also testified that a town generally would retain

a document whose contents were recorded in a town book because

the original document was considered a superior form of written

instrument. However, Whitaker stated that this particular

town’s record keeping was inconsistent regarding documents other

than those relating to births, deaths, marriages, real property,

elections, and town meetings.

In his testimony, Whitaker also discussed the handwritten

entries appearing on the reverse side of the print. As set

forth above, those entries stated: “from 1776 to 1784 Warrants

[etc.],” “Town Warrants [etc.],” “Pownalborough,” “Declaration

of Independence, July 1776,” and “Loose Papers no Taxes.”

According to Whitaker, these entries indicated that the print

continued to “reside” with the town’s clerks for “at least a

short period of time” after 1776. However, Seth Kaller, the

dealer in rare documents who purchased the print at auction in

1995, testified that these particular entries suggested “endless

possibilities” regarding who made these entries and when they

were made.

After considering the evidence, the circuit court issued a

letter opinion explaining its ruling in favor of Adams.

Addressing Maine’s argument that the print was a “public record”

under Maine statutory law, the circuit court held that the 1973

statutory definition of that term was inapplicable because it

6
did not have retroactive effect. 2 However, the circuit court

also addressed the merits of Maine’s statutory argument, ruling

that even if that statutory definition did have retroactive

effect, Maine failed to establish that the town “maintained” the

print as required by that statutory definition.

In addition, the circuit court determined that the print

did not meet the common law definition of a “public record”

because a public officer did not create the print. The circuit

court also found that Maine failed to prove that the town “kept”

the print as a town record.

Finally, the circuit court concluded that Maine failed to

prove that even if the town clerk had once possessed the print,

the print later was converted. The circuit court found that

Maine presented no evidence that the print was wrongfully

removed or converted. The circuit court stated that any

conclusion regarding when and how the print left the town’s

possession would be conjecture.

Based on these findings, the circuit court held that

because Maine failed to establish ownership of the print, Adams

had superior title to the print as a bona fide purchaser and the

party in possession of the print. The circuit court entered a

final judgment order incorporating its letter opinion. Maine

appeals.

2
See ME. REV. STAT. ANN. tit. 30, § 2212(3)(1973).

7
 Maine argues that the circuit court erred in ruling that

Adams established superior title to the print. Maine begins its

analysis by arguing that the circuit court erred in failing to

apply a preponderance of the evidence standard and in assigning

Maine the burden of proving “conclusively” that the print was

kept or maintained by the town. Maine contends that, to the

extent that it had a burden of proof, Maine proved that the town

is the true owner of the print because the print meets the

definition of a “public record” under Maine statutory law.

In the alternative, Maine asserts that the print qualifies

as a public record under the common law. Maine contends that

the evidence demonstrated that the town kept the print for a

sufficient period of time, after its delivery to the town clerk

in 1776, so as to render the print a public record. Maine

contends that the evidence showed that town records were kept by

town clerks at their homes in the 18th, 19th, and 20th

centuries, and that this evidence explains the location of the

print in the home of a daughter of a former town clerk.

Maine additionally asserts that the circuit court erred in

ruling that the common law requires that a public record be

created by a public official. Maine contends that the print

qualified as a public record under the common law because

although Russell was a private printer, he created the

broadsides at the direction of the Executive Council.

8
 In response, Adams argues that the circuit court correctly

decided that Adams established superior title to the print.

With respect to Maine’s common law argument, Adams contends that

Maine failed to prove that the town owned the print under the

common law definition of “public record” because the print was

not a written memorial made by a public officer. Adams

maintains that under the common law definition, the copy of the

Declaration that the town clerk transcribed into the town book

is the only public record established by the evidence.

Adams also argues that Maine was unable to show that the

town “kept” the print, within the meaning of the common law.

Adams contends that the evidence regarding Holbrook’s connection

to the print is speculative, because the evidence failed to show

that the print had been transferred from town clerks to their

successors, or that Holbrook ever had possession of the print.

Addressing Maine’s statutory argument, Adams asserts that

Maine’s position is defaulted on procedural grounds. Adams

argues that Maine failed to assign error to the circuit court’s

holding that Maine statutory law defining a “public record” does

not have retroactive effect. According to Adams, Maine’s

failure to assign error to that holding bars this Court from

considering whether the circuit court correctly decided that

matter.

9
 In resolving these issues, we first observe that an action

to quiet title is based on the premise that a person with good

title to certain real or personal property should not be

subjected to various future claims against that title. Neff v.

Ryman, 100 Va. 521, 524, 42 S.E. 314, 315 (1902); John L.

Costello, Virginia Remedies § 20.07 at 20-38, 20-39 (3d ed.

2005). Thus, in a quiet title action, a plaintiff asks the

court to declare that he has good title to the property in

question and compels any adverse claimant to prove a competing

ownership claim or forever be barred from asserting it. Black’s

Law Dictionary 32 (8th ed. 2004); see City of Staunton v. The

Augusta Corp., 169 Va. 424, 429-32, 193 S.E. 695, 696-97 (1937)

(city failed to carry burden to show it owned certain real

property); Costello, Virginia Remedies § 20.07 at 20-38, 20-39.

At trial, each party asserted that it had superior title to

the print. Accordingly, each party bore the burden of proving

those facts necessary for the court to rule in its favor. See

Sachs v. Horan, 252 Va. 247, 250, 475 S.E.2d 276, 278 (1996);

United Dentists, Inc. v. Commonwealth, 162 Va. 347, 355, 173

S.E. 508, 511 (1934); 9 John H. Wigmore, Evidence in Trials at

Common Law § 2485, 283-86 (Chadbourn rev. 1981).

The common law provides that possession of property

constitutes prima facie evidence of ownership until a better

title is proven. Smith v. Bailey, 141 Va. 757, 776, 127 S.E.

10
89, 95 (1925); see Tate v. Tate, 85 Va. 205, 214, 7 S.E. 352,

356 (1888); Willcox v. Stroup, 467 F.3d 409, 412-13 (4th Cir.

2006). We have explained that possession of personal property

is presumptive proof of ownership because individuals generally

own the personal property that they possess. Saunders v.

Greever, 85 Va. 252, 289, 7 S.E. 391, 410 (1888); see Willcox,

467 F.3d at 412.

This common law presumption of ownership based on

possession requires that the party not in possession of the

disputed personal property produce evidence of superior title.

If the party not in possession is able to produce such evidence

of superior title, the presumption of ownership in the possessor

is defeated. Willcox, 467 F.3d at 413; see Brunswick Land Corp.

v. Perkinson, 146 Va. 695, 708, 132 S.E. 853, 857 (1926).

However, if the party not in possession fails to establish

superior title to the property, the presumption of ownership

based on possession prevails and relieves a court from having to

preside over “a historical goose chase.” Willcox, 467 F.3d at

413.

Maine seeks to establish superior title to the print on the

basis that the print is a “public record” kept and maintained by

the town. In making this assertion, Maine relies both on the

common law definition of “public record” and on Maine’s own

statutory definition of that term.

11
 We first examine the common law component of Maine’s claim.

The parties agree that both Maine and Virginia recognize the

same definition of a “public record” under the common law. This

definition, adopted in many jurisdictions, provides that a

“public record” is

‘a written memorial made by a public officer authorized by
law to perform that function, and intended to serve as
evidence of something written, said or done.’ It must be
‘a written memorial,’ must be made by ‘a public officer,’
and that officer must be ‘authorized by law’ (not required)
to make it. [The public official] must have authority to
make it; but that authority need not be derived from
express statutory enactment. Whenever a written record of
the transactions of a public officer in his office, is a
convenient and appropriate mode of discharging the duties
of his office, it is not only his right but his duty to
keep that memorial, whether expressly required to do so or
not.

Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865, 881

(1874)(emphasis and citation omitted); see White v. United

States, 164 U.S. 100, 103 (1896); Treat v. McDonough, 367 P.2d

587, 589 (Colo. 1961); Branch v. State, 80 So. 482, 485 (Fla.

1918); People v. The Dime Savings Bank, 183 N.E. 604, 607 (Ill.

1932); Robison v. Fishback, 93 N.E. 666, 668-69 (Ind. 1911);

State v. Hanlin, 110 N.W. 162, 164 (Iowa 1907); State v. Chase,

330 A.2d 909, 911-12 (Me. 1975); State v. Donovan, 86 N.W. 709,

711 (N.D. 1901); State v. Kelly, 143 S.E.2d 136, 139 (W.Va.

1965).

In the present case, the evidence showed that Russell was

not a public officer, but was a private printer who printed

12
between 200 and 300 broadsides at the direction of the Executive

Council. The fact that the Executive Council authorized Russell

to print the broadsides did not transform his employment status

from that of a private printer to one of a public officer.

Russell was not executing the duties of public office at the

time he printed the broadsides.

The duty that the common law assigns public officers to

make a written record of governmental action reflects the

importance of public records in providing accurate and

transparent accounts of governmental acts. The serious nature

of this responsibility is such that the duty may be required

under the sanction of official oath. See Coleman, 66 Va. at

882. Public officers are charged with the duty to keep written

records of governmental action affecting the citizens of their

jurisdictions, and the record entries made by those public

officers serve as the “public record” on which the citizens can

rely.

In the present case, the duty of the town’s clerk to create

a public record of the Declaration emanated from the Executive

Council’s order directing that the clerks of the various towns

record the text of the Declaration in their town books “there to

remain as a perpetual Memorial thereof.” This order of the

Executive Council reflected the importance of the clerks’ acts

of transcription and the fact that the written entries they

13
created were to be the perpetual record of the Declaration in

the various town books.

In addition, one of the handwritten notations on the

reverse side of the print provided evidence that the print was

not intended to be a public record of the town. According to

that notation, after the print was sent to Reverend Moore in

Pownalborough, the print was delivered to Reverend Murray in

Booth Bay before it was received by the town clerk in

Pownalborough.

The evidence before us shows that Edmund Bridge, the town

clerk of Pownalborough in 1776, created a public record of the

Declaration for Pownalborough when he transcribed the words of

the Declaration into the official town book. The fact that the

print was critical to Bridge’s transcription of the text of the

Declaration did not render the print a public record. Instead,

the only public record of the Declaration under the common law

was the actual transcription that Bridge entered in the town

book in accordance with the Executive Council’s order.

We do not reach the common law issue whether the print was

“kept” by the clerks of the town after the Declaration’s text

was transcribed into the town book. The fact that the print was

not made by an authorized public officer and was not intended to

be the official memorial of the Declaration precluded the print

from qualifying as a “public record” under the common law,

14
irrespective whether the print later was “kept” by the town’s

clerks. Coleman, 66 Va. at 881; see White, 164 U.S. at 103;

Treat, 367 P.2d at 589; Branch, 80 So. at 485; Dime Savings

Bank, 183 N.E. at 607; Robison, 93 N.E. at 668-69; Hanlin, 110

N.W. at 164; Chase, 330 A.2d at 911-12; Donovan, 86 N.W. at 711;

Kelly, 143 S.E.2d at 139. Thus, we hold that the print was not

a public record of the town under the common law. 3 See Coleman,

66 Va. at 881; White, 164 U.S. at 103; Treat, 367 P.2d at 589;

Branch, 80 So. at 485; Dime Savings Bank, 183 N.E. at 607;

Robison, 93 N.E. at 668-69; Hanlin, 110 N.W. at 164; Chase, 330

A.2d at 911-12; Donovan, 86 N.W. at 711; Kelly, 143 S.E.2d at

139.

Maine argues, nevertheless, that the print is a “public

record” as defined under Maine statutory law. The circuit court

rejected that argument holding, among other things, that the

3
Based on this holding, we do not address Maine’s other
arguments concerning whether the documents were kept by the town
clerk, including the circuit court’s allocation of the burden of
proof regarding how and when the print left the town’s
possession, the circuit court’s statement that Maine had the
burden to prove “conclusively” that the print was kept by the
town, the circuit court’s consideration whether other towns
currently maintain broadside prints, the circuit court’s ruling
that no law required the town to keep the print after it was
transcribed into the town book, and the circuit court’s
consideration whether a library was built in Wiscasset in 1805
to store town records. As stated above, Maine’s failure to
prove that the print was a written memorial made by an
authorized public officer precludes the print from qualifying as
a “public record” under common law, irrespective whether Maine
produced any evidence that the town clerks kept the print.

15
print “pre-dates Maine’s 1973 definition of ‘public records,’

and Maine did not produce evidence that Maine’s legislators

intended for this definition to apply retroactively to all of

the documents that ever entered the state of Maine. Therefore,

the 1973 definition of ‘public record’ does not apply to this

case.”

We are unable to consider the merits of Maine’s statutory

argument. A party who asks this Court to consider whether a

circuit court’s holding was erroneous is required to assign

error to the challenged holding so that it may be identified

properly for our consideration. Rule 5:17(c); Friedline v.

Commonwealth, 265 Va. 273, 278-79, 576 S.E.2d 491, 494 (2003);

Kirby v. Commonwealth, 264 Va. 440, 444-45, 570 S.E.2d 832, 834

(2002); Chesapeake Hosp. Auth. v. Commonwealth, 262 Va. 551, 556

n.2, 554 S.E.2d 55, 57 n.2 (2001). Thus, when a party fails to

assign error to a particular holding by the circuit court, that

holding becomes the law of the case and is binding on appeal.

See Little v. Cooke, 274 Va. 697, 722, 652 S.E.2d 129, 144

(2007); Chesapeake Hosp. Auth., 195 Va. at 565, 554 S.E.2d at

62; Trustees v. Taylor & Parrish, Inc., 249 Va. 144, 154, 452

S.E.2d 847, 852 (1995).

Maine did not assign error to the circuit court’s holding

that Maine’s 1973 statutory definition of public “record” was

not intended to have retroactive application to documents such

16
as the print. 4 Therefore, we hold that the circuit court’s

determination that Maine’s statutory definition of public

“record” was not intended to have retroactive effect has become

the law of this case. See Little, 274 Va. at 722, 652 S.E.2d at

144; Chesapeake Hosp. Auth., 195 Va. at 565, 554 S.E.2d at 62;

Trustees, 249 Va. at 154, 452 S.E.2d at 852.

Our decision that Maine’s statutory definition of “public

record” is procedurally barred from review also removes from our

consideration Maine’s various arguments based on that statutory

definition. Thus, we do not consider those issues, including

whether the circuit court erroneously employed a “conclusive”

standard of proof regarding whether the print was “maintained”

by the town within the meaning of the statutory definition.

Finally, we find no merit in Maine’s argument that

regardless whether the print met the definition of a “public

record” under the common law or statutory law, the circuit court

erred in holding that Wiscasset did not own the print. Maine

bases this argument on its contention that because the print was

delivered to the town clerk in 1776, the print immediately

became the property of the town. Maine asserts that Solomon

4
See ME. REV. STAT. ANN. tit. 30, § 2212(3)(1973). We also
observe that Maine agreed during oral argument of this case that
the current statutory definition of the term public “record,”
found in Title 5, Section 92-A(5) of the Maine Revised Statutes
Annotated, is substantially the same as the 1973 version
addressed by the circuit court.

17
Holbrook’s family wrongfully converted the print, and that Maine

as the true owner of the print may recover it from Adams

irrespective whether he was a bona fide purchaser for value.

Even if we assume, without deciding, that the town owned

the print by virtue of having had the print in its possession

more than 200 years ago, the record does not establish that the

print was converted. “Conversion is the wrongful assumption or

exercise of the right of ownership over goods or chattels

belonging to another in denial of or inconsistent with the

owner’s rights.” Economopoulos v. Kolaitis, 259 Va. 806, 814,

528 S.E.2d 714, 719 (2000); see Universal C.I.T. Credit Corp. v.

Kaplan, 198 Va. 67, 75-76, 92 S.E.2d 359, 365 (1956); accord

Withers v. Hackett, 714 A.2d 798, 800 (Me. 1998); Leighton v.

Fleet Bank of Maine, 634 A.2d 453, 457 (Me. 1993).

Maine produced no evidence supporting its theory of

conversion but merely asks us to speculate that because the

print was found in Holbrook’s daughter’s attic, Holbrook or a

member of his family converted the print. We will not engage in

such speculation and conclude as a matter of law that Maine did

not prove by a preponderance of the evidence that the print was

converted by Holbrook or his family.

Accordingly, we conclude that the circuit court did not err

in holding that Adams established superior title to the print.

In reaching this conclusion, we need not consider whether Adams

18
was a bona fide purchaser of the print because after Adams

established prima facie title to the print, Maine failed to

prove under any theory that Maine owned the print or had

superior title. See Smith, 141 Va. at 776, 127 S.E. at 95;

Tate, 85 Va. at 214, 7 S.E. at 356; Willcox, 467 F.3d at 412-13.

For these reasons, we will affirm the circuit court’s

judgment and enter final judgment declaring that Richard L.

Adams, Jr. has good title to the print.

Affirmed.

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