William Elam, III v. Stephen Early

138 F.4th 804

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 30, 2025
• Docket: 23-2246
• Status: Published

Opinion

USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 1 of 29

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2246

WILLIAM NILE ELAM, III,

Plaintiff - Appellee,

v.

STEPHEN TIMOTHY EARLY; MICHAEL S. EARLY; SUZANNE J. EARLY,

Defendants - Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Michael Stefan Nachmanoff, District Judge. (1:23-cv-00229-MSN-WEF)

Argued: December 12, 2024 Decided: May 30, 2025

Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Harris joined. Judge Richardson wrote a dissenting opinion.

ARGUED: Robert E. Goldman, LAW OFFICES OF ROBERT E. GOLDMAN LLC, Allentown, Pennsylvania, for Appellants. Philip J. Harvey, HARVEY LAW OFFICES, PLLC, Alexandria, Virginia, for Appellee. ON BRIEF: Paris R. Sorrell, HARVEY LAW OFFICES, PLLC, Alexandria, Virginia; David G. Fiske, FISKE LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 2 of 29

QUATTLEBAUM, Circuit Judge:

This appeal involves the intersection of two time-tested traditions. One, sadly, is

that families sometimes squabble over their ancestors’ possessions. Going back at least to

the Book of Genesis—where Jacob took advantage of his older brother Esau to gain his

birthright—family fights over inheritance are “a tale as old as time.” 1 Carrying on that

unfortunate legacy, William Elam and his relatives—the Earlys—cannot agree who owns

a set of Norman Rockwell drawings given to their grandfather. Elam says he owns them

outright, while the Earlys insist they are part-owners.

The other tradition is really an adage. As many of us heard growing up, “possession

is nine-tenths of the law.” It turns out that this old saying reflects our law’s

acknowledgment that possession is often the best evidence of ownership. In adopting that

presumption, Virginia law, which controls this case, follows principles that date back to

ancient Rome. And here, the district court found that Elam’s possession of the Rockwells

created a presumption of ownership, which the Earlys did not rebut.

Applying this ancient solution to a more ancient problem, we agree that Elam’s

possession entitled him to a presumption that he owned the art. We also agree that the

Earlys did not rebut that presumption. Rather than establishing their own superior title, as

the law requires, they merely tried to poke holes in Elam’s title. We, therefore, affirm the

district court’s order of summary judgment declaring Elam to be the owner of the drawings.

1 “Beauty and the Beast,” written by Howard Ashman & Alan Menken, in Beauty and the Beast (Walt Disney Animation Studios 1991).

2 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 3 of 29

I. Background

A. Facts

Our story begins during the Franklin D. Roosevelt administration. In 1943, famed

artist Norman Rockwell 2 drew four panels capturing various visitors in the West Wing

waiting for an audience with FDR. That same year, Rockwell gifted the four original

illustrations—entitled So You Want to See the President—to FDR’s Press Secretary,

Stephen T. Early. The illustrations are pictured below:

2 “Without thinking too much about it in specific terms, I was showing the America I knew and observed to others who might not have noticed.” —Norman Rockwell, Norman Rockwell Museum, NORMAN ROCKWELL: A BRIEF BIOGRAPHY, https://www.nrm.org/about/about-2/about-norman-rockwell/ [https://perma.cc/Z9DP- JMDV] (last visited Feb. 18, 2025). Born in New York City in 1894, Norman Rockwell is one of America’s great artists. At the age of 22, he painted his first cover for the Saturday Evening Post, which he called “the greatest show window in America.” He would go on to create 321 more covers for the Post over the next 47 years. Inspired by FDR’s 1943 address to Congress, Rockwell painted four pictures celebrating fundamental American freedoms that toured the U.S.A. raising money for the war effort: Freedom of Speech, Freedom to Worship, Freedom from Want, and Freedom from Fear. In 1977, the year before he died, he received the Presidential Medal of Freedom. 3 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 4 of 29

J.A. 52.

Unheard of by today’s standards, Early was the longest-serving press secretary in

our nation’s history, holding the role for twelve years under President Franklin D.

Roosevelt. Roughly eight decades later, his relatives are fighting over this art.

Some family history will provide useful background for the squabble. Stephen T.

Early—Grandfather Early—married Helen Wrenn Early—Grandmother Early. Together

they had three children—Stephen T. Early, Jr., Thomas A. Early and Helen Early Elam.

All three children have died. Stephen Jr. and his wife Suzanne had a daughter named

Andrea DeLeon. Thomas had three children—Stephen Timothy Early, Michael Early and

Thomas A. Early, II. And Helen had two children—Dru Anne Elam and William Elam, III.

For a visual picture, the record contains this family tree:

4 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 5 of 29

J.A. 781.

With that family history in mind, we turn to the dispute that led to this appeal. Elam

claims that Grandfather Early gifted the illustrations to his mother Helen when she

graduated from college in 1949. The two other branches of the family—Stephen Jr.’s

widow, Suzanne, and two of Thomas’ sons—Stephen and Michael—dispute this. They

point out that there is no documentary evidence of this gift.

The parties agree that Helen didn’t take immediate possession of the drawings. In

1949, the same year she graduated, Helen got married. At some point, she and her husband

moved to St. Louis. But the illustrations remained behind in the Grandparents’ house on

Morningside Drive in Washington, D.C.

In 1951, Grandfather Early died. He did not leave a will, so his possessions passed

to his heirs under the law, Grandmother Early and their three children—Stephen Jr.,

Thomas and Helen. The probate court records include a meticulous accounting of

5 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 6 of 29

Grandfather Early’s estate. It details items such as a $4 lighter, a $2 table radio, and a $4

fishing pole. But even though his friends and family knew that Grandfather Early was as

proud of the Rockwells “as Churchill was of the [Royal Air Force],” the accounting did

not mention the Rockwells. J.A. 35.

Grandmother Early signed the accounting, stating that it was “a true and perfect

Inventory of the Goods, Chattels, and Personal Estate of [Grandfather Early],” that she

would add any further items to an additional inventory as needed and that she knew of no

concealment of any part of Grandfather’s estate. J.A. 195. Helen and Thomas each signed

receipts acknowledging their distributions from Grandfather Early’s estate. Stephen Jr. did

not sign his, but he did not object to the list.

In 1956, Grandmother Early moved to a house on Tulane Drive in Alexandria,

Virginia. The parties agree she took the Rockwells to her new house, where they remained

until at least 1960.

The parties disagree about what happened in 1960. According to Elam, Helen—who

had returned to the D.C. area from St. Louis—took the illustrations to her house on Marlan

Drive in Alexandria. As he tells it, this was the first house of Helen’s that was large enough

to display the Rockwells. When Helen divorced in 1968, she moved in with Grandmother

Early, who had since moved from her home on Tulane Drive to one on Hoover Lane. Elam

says Helen brought the illustrations with her.

The Earlys tell a different story. In their version, the illustrations stayed in

Grandmother Early’s house on Tulane Drive—which she moved to in 1956—until 1969.

That year, mildew problems forced her to move the illustrations to Helen’s home on Marlan

6 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 7 of 29

Drive. Grandmother Early then bought the Hoover Lane house. Shortly afterward, Helen

came to live there and brought the Rockwells, which, according to the Earlys, she had been

temporarily storing to avoid mildew.

The parties agree that from 1969 to 1972, Helen and Grandmother Early, along with

the Rockwells, lived at Grandmother Early’s house on Hoover Lane. They also agree that

in 1972, Grandmother Early suffered a stroke, after which she moved to an assisted living

community. And no one disputes that Helen continued to live at the house on Hoover Lane,

and that the illustrations remained there too.

In 1978, there was an attempted break-in at the Hoover Lane house. Worried about

the illustrations, Helen thought loaning them to the White House would keep the pieces

safe. Helen ran the idea by her brother Stephen Jr., who approved. So, the illustrations went

to the White House in 1978 under an agreement that was officially between her son,

William Elam, and the White House. It obligated the White House to return the illustrations

to Elam upon request.

That same year, Grandmother Early died. The accounting of her estate does not list

the illustrations or any partial interest in them. Nor does Grandmother Early’s will or

codicil. And Grandmother’s estate attorney testified that when he toured her house to get a

sense of her estate, he saw the illustrations, but Grandmother Early never mentioned that

she owned them.

Grandmother Early’s will does not have much detail. But it does bequeath her

“personal effects, household furnishings and objects of art to my three children.” J.A. 209.

7 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 8 of 29

Despite that, her estate inventory valued all her household furniture and personal effects at

only $3,000. The illustrations were appraised in 1979 at $80,000.

The three children—Stephen Jr., Thomas and Helen—each signed

acknowledgments stating they received a one-third share in “personal effects and

household furnishings” in “full settlement of my share of the estate of” Grandmother. J.A.

203–05. None of them mention the illustrations.

Stephen Jr. died in 2009. His estate documents do not mention an ownership interest

in the illustrations.

Helen died in 2009 as well. Her will expressly bequeathed two Rockwell panels to

William Elam and two to Dru Anne. Later, Dru Anne disclaimed her ownership in the

illustrations, giving William Elam 100% of Helen’s interest in the illustrations. 3

In 2017, Thomas—who claims he did not know that the illustrations were in the

White House—saw them in the background of an interview with President Trump he was

watching on TV. At that point, he and his daughter-in-law separately contacted the White

House to object to the loan. But when he died in 2020, Thomas’ estate documents, like

Stephen Jr.’s, did not say anything about the illustrations.

In 2021, the dispute came to a head. At that point, Stephen Jr.’s widow, Suzanne,

and Thomas’ sons, Stephen and Michael, notified Elam that they claimed an ownership

3 Adding to the family drama, the Earlys insist this contract was the product of fraud. They say that William Elam’s sister, Dru Anne, never read the contract that she signed. But Dru Anne is not a party to this lawsuit, and the Earlys lack standing to bring a claim of fraud on her behalf. So, whether true or not, these allegations are not relevant to our decision.

8 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 9 of 29

interest in the illustrations. The next year, Elam asked the White House to return the

illustrations. While Elam has had them since that return, the parties agree that his

possession since then cannot be used to demonstrate ownership.

B. Procedural History

In 2023, Elam sued all his family members who claimed an ownership interest in

the illustrations—Stephen Early, Michael Early and Suzanne Early. Elam asked the court

to quiet title to the Rockwells and issue a declaratory judgment that he owns them. The

Earlys countersued, likewise asking the court to quiet title and render a declaratory

judgment in their favor. They also brought counterclaims under Virginia common law for

conversion, detinue, 4 breach of bailment, conspiracy, fraudulent concealment, fraud and

unjust enrichment. They abandoned these last three claims before both sides moved for

summary judgment.

The district court granted Elam’s motion and denied the Earlys’. First, regarding

Elam’s claims for quiet title and declaratory relief, the court reasoned that Elam was

entitled to a common-law presumption of ownership due to Helen’s possession of the

paintings from 1960 to 1978. This shifted the burden to the Earlys to show superior title.

The Earlys’ primary argument was that Grandfather Early never gave a valid inter vivos

gift to Helen, so Helen had no more than a 1/3 share to give to her children. The court

4 One does not see detinue actions every day. “The object of a detinue action is to recover specific personal property and damages for its detention.” Broad Street Auto Sales, Inc. v. Baxter, 334 S.E.2d 293, 294 (Va. 1985). “The action is employed to recover a chattel from one in possession who unlawfully detains it from either the true owner or one lawfully entitled to its possession.” Id.

9 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 10 of 29

acknowledged it is undisputed that the illustrations were not physically delivered to Helen

during Grandfather Early’s lifetime. But it also determined that since the Earlys had the

burden to prove superior title, a mere lack of evidence of the inter vivos gift’s validity was

insufficient.

The district court next explained that the evidence in the record shows Elam has

superior title. The court highlighted that of all the family members, the only estate to

specifically reference the illustrations is Helen’s. From this, the court said, one can “only

conclude that the [i]llustrations were not a part of Grandfather Early’s estate because he

had already gifted them during his lifetime.” J.A. 769.

As to the Earlys’ common law counterclaims, the court determined that the

conversion claim was time-barred. And it would fail on the merits, anyway, the court said,

because conversion cannot lie against a person who has a partial ownership interest in an

indivisible object. This same reason barred the Earlys’ detinue claim. The court then

determined no admissible evidence supported the Earlys’ bailment claim. With no

surviving common law claims, the court dispensed with the conspiracy claim, granting

Elam summary judgment in full. This appeal followed. 5

5 Because Elam is a citizen of Virginia while the Earlys are citizens of North Carolina and Maryland, the district court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1). The Earlys timely appealed the district court’s November 1, 2023, decision granting Elam’s motion for summary judgment on November 27, 2023. We thus have jurisdiction under 28 U.S.C. § 1291. And because Elam brought this suit in Virginia, we apply Virginia substantive law. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) (“Under [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)], federal courts sitting in diversity apply state substantive law and federal procedural law.”). 10 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 11 of 29

II. Analysis

The Earlys’ primary argument is that the district court erred in its quiet title analysis.

“[I]n 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.” State of Maine v. Adams, 672 S.E.2d 862, 866

(Va. 2009). The Earlys argue that during its quiet title analysis the district court improperly

applied Virginia’s common law presumption of ownership. They do not dispute that

Virginia generally presumes that possession indicates ownership. But they insist that we

should consider this presumption only after assessing the validity of the alleged gift from

Grandfather Early to Helen. To address these arguments, we begin with some background

on the principle that possession of property creates a presumption of ownership. We then

consider the Earlys’ sequencing argument before applying the presumption of ownership

to the evidence in this record. Last, we will review the district court’s decisions as to the

Earlys’ common law counterclaims.

A. The Presumption

The importance Virginia law places on the possession of property in determining

ownership is nothing new. In fact, it dates all the way back to Roman law. The Romans

had a legal doctrine called “as you possess,” by which the praetor declared, “I forbid force

to be used to prevent him of you two who is at present in a faultless possession of the

11 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 12 of 29

disputed building from possessing it as he at present does.” 6 Eric Descheemaeker, The

Consequences of Possession 21 (U. Edinburgh Sch. of L., Working Paper No. 2013/31,

2013) (quoting Fritz Schulz, Classical Roman Law 448 (1951)).

By Justinian’s time (482–565 A.D.), this doctrine was extended to chattels. Id. at

22. In this way, “[t]he Romans resolved pragmatically what could have otherwise become

analytically insoluble questions about possession.” Id. at 20. 7

The law’s premium on possession continued into the Middle Ages. “So feeble and

precarious was property without possession . . . in the eyes of medieval lawyers that

[p]ossession largely usurped not only the substance but the name of Property.” Frederick

Pollock & Robert Samuel Wright, An Essay on Possession in the Common Law 5 (1888).

Early American law continued this tradition. As early as 1822, the Supreme Court

of the United States held that “if a person be found in possession . . . it is prima facie

evidence of his ownership.” Ricard v. Williams, 20 U.S. (7 Wheat.) 59, 105 (1822).

6 See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302273 [https://perma.cc/39XT-8Z4N]. 7 Our friend in dissent claims our reference to Roman law is an effort to “lend an air of legitimacy” to our application of the presumption at the summary judgment stage of the case. Diss. Op. at 25. Not so. Our reference to Roman law is to show the historical pedigree of the presumption that Virginia law maintains to this day, something we seem to all acknowledge. We part ways, however, on the implications of the dissent’s statement that during Roman times, factfinders applied the presumption. We do not look to history to replicate the precise procedures used centuries ago. Instead, we must apply the presumption based on Virginia law and the Federal Rules of Civil Procedure, even if the Romans did not apply it the exact same way. So, the result here does not depend on evidence of Hammurabi or a Roman praetor pulling out an ancient equivalent of Rule 56.

12 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 13 of 29

The presumption gathered no dust in Virginia. See Tate v. Tate, 7 S.E. 352, 356 (Va.

1888); Smith v. Bailey, 127 S.E. 89, 95 (Va. 1925). To the contrary, the Virginia Court of

Appeals applied the presumption dispositively just a few months ago. See Cowherd v. City

of Richmond, 905 S.E.2d 463, 467–68 (Va. Ct. App. 2024) (holding that maintaining a

monument site for over 100 years entitled the city to a presumption of ownership). And in

State of Maine v. Adams, 672 S.E.2d 862 (Va. 2009), the Virginia Supreme Court

thoroughly examined the presumption. The court explained that Virginia law recognizes

that “[p]ossession of personal property is presumptive proof of ownership because

individuals generally own the personal property that they possess.” Id. at 867. This

presumption persists “until a better title is proven.” Id. But if no better title is shown, the

presumption “prevails and relieves a court from having to preside over ‘a historical goose

chase.’” Id. (quoting Willcox v. Stroup, 467 F.3d 409, 413 (4th Cir. 2006)). There, the

Virginia Supreme Court applied the presumption dispositively to an action to quiet title to

a copy of the Declaration of Independence. Indeed, because the possessor was entitled to

the presumption, the court did not reach the question of whether the possessor was a bona

fide purchaser, since the non-possessor “failed to prove under any theory that [it] owned

the print or had superior title.” Id. at 869.

We have embraced this presumption ourselves. In Willcox, we explained its

theoretical justifications and utility, recognizing that “the presumption operates to resolve

otherwise impenetrable difficulties.” 467 F.3d at 413. When a case presents questions about

ownership to which the answers might otherwise prove a mystery, the presumption “cuts

13 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 14 of 29

the Gordian knot.” Id. The presumption also, we noted, “promotes stability” by deferring

to “settled distributions and expectations.” Id.

There, we applied the presumption to South Carolina’s claim that papers from two

governors of South Carolina during the Civil War were public property. Willcox had found

the papers in 1999 or 2000 in a closet in his late stepmother’s home. Id. at 411. The papers

seemed to come into Willcox’s family through his great-great-uncle, a Confederate major

general named Evander Law. Id. By the 1940s, General Law’s granddaughter (Willcox’s

stepmother) Annie Storm was in possession of the papers. Storm described the documents

as “original State House papers entrusted to [her] grandfather at the time of the surrender.”

Id. Then, shortly before the documents were supposed to be auctioned in 2004, Willcox

gave them to the South Carolina State Archives so they could microfilm them. Id. The day

before the auction, South Carolina obtained a temporary restraining order enjoining the

letters’ sale and asserting its claim to the letters as public documents. Id. We held that

Willcox established the presumption of possession over the many years he possessed the

property, and South Carolina had no basis for rebuttal. Id. at 417. Thus, Willcox had

superior title.

Does presuming ownership from possession work perfectly every time? Of course

not. Even with the opportunity for rebuttal, the presumption may at times be overinclusive

and entitle some possessors to property they don’t own. But our tradition, across millennia,

has decided that overinclusion is preferable to the insecurity of a world where the law does

not assume that people own the property they possess. We will not disregard this

14 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 15 of 29

longstanding tradition in Virginia law. 8 Thus, we agree with the district court that the

presumption applies to the contest over who owns the Rockwells.

B. The Earlys’ Sequencing Argument

The Earlys do not dispute that Virginia law presumes possessors of property are the

owners. Instead, they argue that we should consider this presumption only after evaluating

whether the gift from Grandfather Early to Helen was valid. And they insist that it was not.

Citing District of Columbia law, where Grandfather Early lived at the time of the supposed

gift to Helen, they say Elam must prove by clear and convincing evidence that Grandfather

intended to give the Rockwells as a gift and delivered them. See Murray v. Gadsden, 197

F.2d 194, 205 (D.C. Cir. 1952) (“The requisites of a valid gift inter vivos are delivery,

8 Also, nothing in Virginia law suggests the presumption does not apply to co-owned property. To the contrary, the presumption “applies across the law of personal property.” Willcox, 467 F.3d at 413. While a couple of older decisions from other states address the concept of co-ownership, even they do not suggest a broad exception for co-owned property. Take Ryhiner v. Feickert, 92 Ill. 305, 312 (1879). That case put no weight on the presumption of possession for a note that was payable on its face to two different people. As the court said, “[t]he faces of these notes disclose the interest of the holder—that he is joint payee, and that therefore he holds for himself and for all the other payees—and rebut any presumption that might arise otherwise from the mere possession of the notes.” Id. The court did not say the presumption didn’t apply; it said the face of the note rebutted the presumption. Turley v. Tucker, 6 Mo. 583 (1840) is no different. There, a sawmill sued another nearby sawmill for sawing trees the first sawmill had felled. But the trees the sawmill cut were on land owned by the United States. Thus, “the very evidence which establishes the possession proves also that possession to be tortious, and consequently the plaintiff’s possession being only prima facie evidence of property, is rebutted by establishing a conflicting claim to an absolute property in another.” Id. at 587. Like Ryhiner, Turley does not say that the presumption doesn’t apply. Rather, it was rebutted by evidence. And imagine the consequences if the presumption did not apply in the case of a claim of co-ownership. It would be bizarre to be able to defeat the presumption in any case simply by claiming joint ownership.

15 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 16 of 29

intention on the part of the donor to make a gift, and absolute disposition of the subject of

the gift.”).

For at least three reasons, the district court correctly rejected this argument. First,

the very word “presumption” indicates a step that occurs before further analysis. Second,

the presumption would not fulfill its purpose of relieving the court from “wild goose

chase[s]” if the court chased the goose before applying the presumption. See Willcox, 467

at 413. Under the Earlys’ approach, the presumption would be hollow. If Elam must first

prove a valid inter vivos gift, but cannot, the case would be over. There would be no role

for the presumption. Likewise, at least in this case, even if Elam had to first prove a valid

inter vivos gift and could do so, there would still be no role for the presumption. On the

other hand, starting with the presumption gives meaning to each step of the analysis. Third,

nothing in Virginia law suggests the Earlys’ proposed sequencing is correct. Precedent

applies the presumption first and shifts the burden to the non-possessor to show superior

title. Following that approach, we turn now to whether Helen was entitled to the

presumption.

C. Helen’s Possession

The parties agree that the Rockwells were at the Grandparents’ house on

Morningside Drive in Washington, D.C. from 1943 to 1956. They also agree that the

illustrations were at Grandmother Early’s house on Tulane Drive from 1956 until at least

1960. Elam’s sworn testimony in the record indicates that Helen possessed the illustrations

beginning in 1960. Also, Helen wrote a letter to the Rockwell Museum stating that she was

given the Rockwells in 1960, which is the same year she and her husband moved into the

16 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 17 of 29

Marlan Drive house. And even if that evidence is thin, there is no dispute that Helen moved

from her house on Marlan Drive to Grandmother Early’s house on Hoover Lane in 1969

and brought the illustrations with her.

To be sure, the Earlys argue that Helen did not take possession of the Rockwells in

1960. They furthermore assert that any control Helen had over the Rockwells in 1969 was

only because the family had agreed to move them to Helen’s house temporarily because of

moisture issues at Grandmother Early’s house. But the only evidence for the Earlys’

contrary story is Michael’s testimony of what he remembers from a family meeting in 1969,

when he was seven years old. Michael first answered “no” to the question of “can you

testify as to what you heard, if anything, when you were age seven at that meeting?” J.A.

518. He then testified that, although he was just seven at the time, he remembered family

members discussed moving the pictures to Helen’s house because of moisture issues in

Grandmother’s home on Tulane Drive—Helen kept telling Grandmother that the

Rockwells were going to get ruined.

The district court determined that this testimony was hearsay, which is inadmissible

for summary judgment purposes. Raynor v. Pugh, 817 F.3d 123, 131 (4th Cir. 2016)

(Keenan, J., concurring in part) (citing Fed. R. Civ. P. 56 (c)) (“A nonmoving party seeking

to prevent summary judgment must show a genuine dispute of fact using admissible

evidence, not merely conclusory or speculative statements.”). The Earlys maintain that

Helen’s concern that the Rockwells would get ruined should be excepted from hearsay

because it reveals Helen’s state of mind. Maybe it does. But Helen’s state of mind is not a

17 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 18 of 29

material issue; only the location of the pictures is. So, the Earlys cannot use what Michael

heard others say to create a genuine dispute of material fact about the Rockwells’ location.

Besides, as the district court noted, “at a minimum,” Helen possessed the pictures

from 1972 until 1978. J.A. 765. “Actual possession” is defined as “[p]hysical . . . control

over property.” United States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (citing Actual

Possession, Black’s Law Dictionary 1201 (8th ed. 2004)). Actual possession requires

“direct physical control.” Henderson v. United States, 575 U.S. 622,

626 (2015). Grandmother left the house in 1972, never to return. For six years, Helen had

undisputed sole physical control over the Rockwells. Thus, Helen had actual possession of

the paintings during this period. And for good reason, the Earlys do not argue that the White

House loan deprived Helen of possession. Thus, there is no genuine dispute of material fact

that Helen alone possessed the Rockwells for years. As a result, she is entitled to the

presumption of possession.

D. Rebutting the Presumption

Having determined the presumption applies, we turn now to the Earlys’ chance to

rebut it. “If the party not in possession is able to produce [] evidence of superior title, the

presumption of ownership in the possessor is defeated.” State of Maine, 672 S.E.2d at 867

(citing Willcox, 467 F.3d at 413). “In most cases, the party not in possession would attempt

to meet its burden through factual evidence, such as evidence of title or of recent prior

possession.” Willcox, 467 F.3d at 414. “[T]he [non-possessor’s] burden may not be met by

challenging the sufficiency of the possessor’s title but only by proving the superior strength

of its claim.” Id. at 415.

18 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 19 of 29

But in their briefs, the Earlys do not attempt to show superior title. Instead, they

rely exclusively on the lack of evidence for an inter vivos gift. In other words, they argued

the presumption should not apply; they did not attempt to rebut it. 9 Having spent all their

powder on that skirmish, the Earlys preserved no ammunition to wage a battle over superior

title.

At oral argument the Earlys attempted to argue there was evidence that they had

superior title. They insisted, for the first time, that intestacy laws evidence their superior

title; that when Grandfather died intestate, one-third ownership in the Rockwells passed to

Grandmother Early and two-thirds passed to Stephen Jr., Thomas and Helen. Then, at

Grandmother Early’s death, her one-third passed equally to the three of them. Thus, the

Earlys insist they do more than just attack Elam’s title; they claim this creates a genuine

dispute of material fact about title.

There are two basic problems here. First, the Earlys did not advance this rebuttal

argument in their briefs. They put all their eggs in the inter vivos gift basket. Confirming

this, at oral argument, when asked where in their brief they had argued that they could rebut

the presumption, the Earlys pointed to the fact section. But facts are not argument. See

The Earlys’ brief does contain a section titled “The Rebuttable Presumption Given 9

to the Possessor.” Op. Br. at 29. But that section does not rebut the presumption with evidence of superior title. This excerpt sums up the Earlys’ argument from that part of their brief: “The court ignored the fact that it was Appellee’s burden to prove the gift by clear and convincing evidence under D.C. law. And, equally significant, Appellants set forth a plethora of material facts, including the Appellee’s admissions that establish that there was no inter vivos gift. Therefore, any presumption of sole ownership by Appellee’s mother has been rebutted.” Op. Br. at 30.

19 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 20 of 29

Suarez-Valenzuela v. Holder, 714 F.3d 241, 249 (4th Cir. 2013) (“[C]ontentions not raised

in the argument section of the opening brief are abandoned.”) (emphasis omitted)

(quotation omitted). A party therefore waives review of any issues not fully developed in

its opening brief. See Canady v. Crestar Mortg. Corp., 109 F.3d 969, 973–74 (4th Cir.

1997).

Second, even if we consider the Earlys’ belated theory, Grandfather Early’s

intestate death and Grandmother Early’s will do not create a genuine dispute of material

fact. Neither of these facts contradict the evidence that Grandfather Early gave the

Rockwells to Helen.

Starting with Grandfather Early’s intestate death, the absence of a will must be

considered in conjunction with the accounting of his estate and what his descendants said

about that accounting. The detailed accounting of his estate did not mention the drawings.

It’s hard to imagine that possessions that were as valuable as those drawings were to him

would not have been mentioned if he felt he still owned them; to the contrary, the

accounting’s silence about the drawings suggests Grandfather Early gave them to Helen.

And recall that Grandmother Early, Helen and Thomas all signed documents agreeing to

the accuracy of the accounting. Stephen didn’t, but he didn’t object, either.

As to Grandmother Early’s will, she valued her “personal effects [and] household

furnishings” at $3,000. The Rockwell drawings were worth $80,000. If she believed she

owned a 50% interest in them, the $3,000 valuation of her personal property makes no

sense. Then, neither Stephen Jr. nor Thomas mentioned an interest in the Rockwells in their

estate documents. If they believed they were owners, why the silence? Finally, consistent

20 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 21 of 29

with the evidence that Grandfather Early gave the Rockwells to his daughter Helen,

Helen’s will expressly bequeathed the art to her children. All the evidence points one way.

Even construing it in the light most favorable to the Earlys, there is no genuine dispute of

material fact about who owned the Rockwells.

And that is before the presumption is added to the mix. Contrary to the Earlys’

argument, Rule 56 does not say that courts addressing summary judgment motions should

defer applying presumptions if that deferral would benefit the non-movant. Indeed,

“presumptions are [] useful devices for allocating the burdens of proof between parties.”

Basic Inc. v. Levinson, 485 U.S. 224, 245 (1988); see Fed. R. Evid. 301 (“In a civil case,

unless a federal statute or these rules provide otherwise, the party against whom a

presumption is directed has the burden of producing evidence to rebut the presumption.

But this rule does not shift the burden of persuasion, which remains on the party who had

it originally.”). While the burden of persuasion remains with Elam, the presumption helps

him carry that burden. See, e.g., Simply Wireless, Inc. v. T-Mobile US, Inc., 115 F.4th 266,

278 (4th Cir. 2024) (applying a presumption of abandonment to shift the burden of

persuasion at the summary judgment stage). 10

10 The dissent seems to adopt this position, insisting that the presumption is a “device for allocating the burden of proof when settling disputes as a matter of fact—not, as summary judgment does, as a matter of law.” Diss. Op. at 24. But it cites to no law prohibiting its use at summary judgment. And doing so would seem inconsistent with the way the presumption operates under Virginia law. Under that law, the possessor of the property is presumed to be the owner unless the nonpossessing party asserts affirmative evidence of his ownership—not attacks on the possessor’s claim. Willcox, 467 F.3d at 415. If the nonpossessing party does not do so, then there is no genuine dispute of material fact, and Rule 56 requires that the possessor prevail as a matter of law.

21 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 22 of 29

To sum up, the Earlys abandoned any argument rebutting the presumption based on

the superiority of their title. But the estate documents belie any rebuttal argument, anyway.

While the Earlys may have an argument that could show they have an equal title to the

Rockwells, they have no evidence, which is what Virginia law requires. See State of Maine,

672 S.E.2d at 867 (“[T]he party not in possession of the disputed personal property [must]

produce evidence of superior title.”). With the presumption unrebutted, Helen’s interest in

the Rockwells was complete and exclusive. And because she passed that interest to Elam,

superior title rests with him. Accordingly, we affirm the district court’s quiet title ruling

and its declaratory judgment.

E. Common Law Claims

The Earlys’ common law counterclaims cannot survive Elam’s superior title.

“Conversion is any wrongful exercise or assumption of authority . . . over another’s goods,

depriving him of their possession; [and any] act of dominion wrongfully exerted over

property in denial of the owner’s right, or inconsistent with it.” Mackey v. McDannald, 842

S.E.2d 379, 387 (Va. 2020) (emphasis added) (internal quotation marks omitted). “A

bailment has been broadly defined as ‘the rightful possession of goods by one who is not

the owner.’” K–B Corp. v. Gallagher, 237 S.E.2d 183, 185 (Va. 1977) (quoting 9 S.

Williston, Contracts 875 (3d ed. 1967)). “To succeed in a detinue action, a plaintiff

must . . . have property in the thing sought to be recovered . . . .” McGrath v. Dockendorf,

22 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 23 of 29

793 S.E.2d 336, 339 (Va. 2016) (cleaned up). 11 Because Elam owns the Rockwells, the

Earlys have no right in the Rockwells, and these claims fail.

With no underlying torts remaining, the Earlys’ conspiracy claim evaporates.

“[C]onspiracy allegations . . . do not set forth an independent cause of action; instead, such

allegations are sustainable only after an underlying tort claim has been established.”

Dunlap v. Cottman Transmission Sys., LLC, 754 S.E.2d 313, 317 (Va. 2014) (quoting

McCarthy v. Kleindienst, 741 F.2d 1406, 1413 n.7 (D.C. Cir. 1984)). The district court

properly dismissed these claims.

III. Conclusion

Family disputes are often messy and always unpleasant. The presumption that Elam

owns the Rockwells because Helen possessed them may not make this dispute any more

pleasant, but it does help sort through the mess. Following Virginia law, we affirm the

district court. 12

AFFIRMED

What’s more, the conversion and detinue claims are untenable even under the 11

Earlys’ co-ownership theory, since even under that theory they have not established a right to immediate possession. “An action for conversion can be maintained only by one who has a property interest in and is entitled to the immediate possession of the thing alleged to have been wrongfully converted.” United Leasing Corp. v. Thrift Ins., 440 S.E.2d 902, 906 (Va. 1994). “To succeed in a detinue action, a plaintiff must . . . have the right to [the property’s] immediate possession . . . and [] the defendant must have had possession at some time prior to the institution of the action.” McGrath, 793 S.E.2d at 339 (cleaned up). 12 We also deny Elam’s motion to file a surreply brief.

23 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 24 of 29

RICHARDSON, Circuit Judge, dissenting:

The majority purports to tell a tale as old as time when applying the presumption of

ownership from possession, yet it skips over a few hash marks on the relevant timeline.

Once the proper history has been considered, we can see that the presumption has nothing

to do with this appeal at all. And shorn of the presumption, this case can be seen for what

it is: one large genuine dispute of material fact. So I would vacate the district court’s grant

of summary judgment for Elam and remand for further proceedings.

To be clear, I don’t doubt the existence of the presumption of ownership from

possession. Since the days of Hammurabi’s Code, individuals embroiled in property

disputes have been able to take their disputes to a factfinder. See, e.g., The Code of

Hammurabi King of Babylon: About 2250 B.C. § 9 (Robert Francis Harper trans., 2d ed.

1904); The Twelve Tables, in 1 The Civil Law 68 (S.P Scott trans., 1932) (Table VI). And

if the ownership of the property was uncertain, a factfinder could use possession to break

the tie. See The Enactments of Justinian, in 3 The Civil Law, supra, 209–10 (Gaius, On

the Provincial Edict, Book VII); 1 Bava Basra § 43b (Babylonian Talmud) (Rabbi Hersh

Goldwurm et al. eds., Rabbi Yosaif Asher Weiss trans., Schottenstein 1st ed. 1992).

But the factfinder was just that—a finder of facts. That’s why, in the United States,

the presumption that possession weighs in favor of ownership is, and always has been, a

device for allocating the burden of proof when settling disputes as a matter of fact—not,

as summary judgment does, as a matter of law. See, e.g., Maine v. Adams, 672 S.E.2d 862,

865–67 (Va. 2009) (bench trial); Perkins v. Greever, 7 S.E. 391, 399, 409 (Va. 1888)

(bench trial). Tellingly, the other cases cited by the majority apply the presumption before

24 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 25 of 29

a factfinder in the same way. See Tate v. Tate, 7 S.E. 352, 352 (Va. 1888) (factfinding by

a master commissioner); Smith v. Bailey, 127 S.E. 89, 89 (Va. 1925) (bench trial); Willcox

v. Stroup, 467 F.3d 409, 411 (4th Cir. 2006) (bench trial); Cowherd v. City of Richmond,

82 Va. App. 15, 19–20 (2024) (public hearing under Va. Code. Ann. § 15.2-1812(B)).

Despite this, the majority insists on applying this presumption at summary

judgment. And it attempts to lend an air of legitimacy to its application by tracing the

presumption’s lineage back to Roman times, pointing to the Roman “legal doctrine” of “as

you possess” as the presumption’s predecessor. Ante at 11–12 (citing Eric Descheemaeker,

The Consequences of Possession 21 (U. Edinburgh Sch. of L., Working Paper No. 2013/31,

2013)). 1 If the majority wishes to fight on Roman soil, I have no objection. But if we are

to be in Rome, then we should do as the Romans did. And the Romans applied the

presumption only before a factfinder.

The phrase “as you possess” is a translation of the Latin phrase “uti possidetis,” the

name of a type of interdictum. See Descheemaeker, supra, at 21. An interdictum was not,

contrary to the majority’s suggestion, a legal doctrine at all, but a type of order—vaguely

akin to a preliminary injunction today—in the legal formulary system of the Roman

Republic. See 4 The Digest of Justinian glossary (Alan Watson ed., 1985). These

interdicta were issued by praetors—“important magistrate[s]” tasked with “the

administration of private law.” Id. “One remarkable point” about interdicta, the majority’s

1 My mentor and friend Richard Epstein will surely be pleased with the majority’s recognition of the enduring relevance of Roman law. Cf. Richard A. Epstein, The Natural Law Origins of Private and Public Law, 17 N.Y.U. J. L. & Liberty 205, 205 (2024) (starting, as he often does, with Roman law). 25 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 26 of 29

own source notes, is that they were “entirely independent from any question of ownership.”

Descheemaeker, supra, at 19 (emphasis added). Instead, an interdictum protected

possession itself, regardless of who the owner was, often to preserve the peace while the

dispute over ownership was pending. See id.; see also Andrew M. Riggsby, Roman Law

and the Legal World of the Romans 139 (2010) (“The general idea [of the interdictum] was

to give some legal protection to the mere possession of property.”).

The dispute over ownership—as opposed to mere possession—was instead settled

through a separate legal proceeding called the rei vindicatio, where a judge would take

evidence from both parties and conduct the equivalent of a modern-day bench trial. See

Descheemaeker, supra, at 19; Riggsby, supra, at 138, 141–42. It is in the vindicatio

proceeding where we see the predecessor of the presumption. Because a possessor of

property could seek an interdictum, which allowed them to use the property without

interference, they had no incentive to raise a property dispute themselves. Thus, when

property came into dispute, “the current possessor would be defendant” in a vindicatio suit

brought by the other party, “which of course was a considerable advantage” because the

plaintiff would bear the “burden of proving ownership.” Descheemaeker, supra, at 19, 21;

see also The Enactments of Justinian, supra, at 209–10. In other words, the presumption

of ownership from possession was not the interdictum itself, declared by the praetor

without taking evidence of ownership, but a downstream consequence of the interdictum

that applied at trial before a fact-finding judge. The Romans are no allies of the majority’s

position.

26 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 27 of 29

Without the presumption of ownership from possession in the way, we are left with

a bare dispute over the ownership of the Rockwells. The parties in the case each present a

plausible chain of title. Elam’s theory of title is that in 1949, before dying intestate,

Grandpa Early gave the Rockwells as an inter vivos gift to Helen, who then gave them to

Elam in 2009. On the other side, the Earlys’ theory of title is that Grandpa Early never

gifted the Rockwells and that instead they passed via the ordinary intestacy laws along with

the rest of his estate, splitting ownership between Grandma Early and her children. On this

theory, each Early would have inherited a piece of Grandma Early’s share upon her death

and is entitled to a 1/3rd share of ownership today.

Each theory of title has severe problems. For Elam’s theory, there doesn’t appear

to be any contemporaneous proof of any inter vivos gift from Grandpa Early to Helen in

1949. To the contrary, Helen herself stated in a letter to the Rockwell Museum that she

was given the Rockwells in 1960, over a decade later; Grandma Early possessed the

illustrations in the interim. 2 Potentially corroborating her letter date of 1960 is the fact that

she may also have taken possession of the illustrations that same year—over a decade after

the alleged inter vivos gift. And when making the decision about whether to lend the

Rockwells to the White House, she consulted her brother—an alleged co-owner—before

doing so. These are not the expected statements and actions of someone who was gifted

the illustrations outright in 1949.

In fact, it’s unclear why the majority does not apply its interpretation of the 2

presumption to Grandma Early’s possession of the Rockwells. 27 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 28 of 29

It’s not much better on the other side. For the Earlys, it’s a puzzle why Grandpa

Early’s estate would have an accounting that listed $4 lighters and $2 radios but not these

valuable Rockwells. The same puzzle is present for Grandma Early’s estate, which was

valued at $3,000 after accounting for all furniture and personal effects—a number that

clearly did not include the value of the illustrations. Nor were the Rockwells brought up

by Stephen Jr., Thomas, or Helen when divvying up Grandma Early’s estate. Nor were

they mentioned in Stephen Jr.’s estate upon his death. These, too, are not the expected

statements and actions in estate planning of people who own a famous work of art.

With such scant evidence on each side and plenty of testimony in conflict, this case

is the posterchild of jury questions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions.”). But the majority doesn’t see both

sides of the disagreement. It only sees Elam’s. The Earlys’ attacks on the inter vivos gift

that sits at the foundation of Elam’s theory of title are simply ignored.

The majority discounts the legal significance of the Earlys’ attacks (albeit in the

context of erroneously discussing the presumption) because it believes that the lack of

evidence for Elam’s theory is not affirmative evidence for the Earlys’. The majority

misunderstands the logical landscape of this case. Everyone agrees that if Grandpa Early

never gifted Helen the Rockwells, then the Earlys’ theory of title applies. That’s because

the Earlys’ theory of title is the default chain of title from the standard rules of intestacy

that apply if there is no inter vivos gift. As the likelihood of the inter vivos gift declines,

the likelihood of default intestate succession goes up; the likelihood of the two theories are

28 USCA4 Appeal: 23-2246 Doc: 31 Filed: 05/30/2025 Pg: 29 of 29

mirror images of each other. So disproving the existence of an inter vivos gift to Helen

would itself be affirmative evidence for the intestate succession theory of title that would

allow a reasonable jury to find for the Earlys.

Of course, the Earlys might bear the burden of proof at trial because of the

presumption of ownership from possession. 3 They might very well lose at the end of the

day. But this is not trial. And we are not factfinders. I respectfully dissent.

3 Maybe. Virginia has not, to my knowledge, applied the presumption in any case involving a dispute over potential joint ownership. The majority makes the Erie guess that the Commonwealth courts would do so. But the rationale for the presumption doesn’t obviously apply. The presumption is a tiebreaker that applies in favor of the possessor when multiple parties assert mutually exclusive property interests—in such a case only one party has the right to possess, so tie goes to the possessor. But when, as here, a nonpossessor only claims partial ownership over shared chattel and admits that the possessor also has partial ownership, the nonpossessor has not asserted a mutually exclusive property interest. Joint ownership by both is entirely compatible with possession by one. In other words, possession is seemingly not indicative of exclusive ownership as between co-owners. Cf. 1 Bava Basra, supra, § 42a & nn.17–21 (explaining that the presumption does not apply between family members who may share possession of property). To use an example involving real property, if two roommates buy an apartment together, the fact that only one roommate is in the apartment does not imply a lack of ownership by the other. This case potentially appears to me to be similar. Fortunately, the Virginia courts are not bound by the majority’s understanding of the presumption and are free to address the question as they see fit. See Erie R.R. v. Tompkins, 304 U.S. 64, 78–79 (1938). 29