Mays v. Burgess

147 F.2d 869, 162 A.L.R. 168, 79 U.S. App. D.C. 343, 1945 U.S. App. LEXIS 2205

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 29, 1945
• Docket: 8831
• Status: Published

Opinions

GRONER, C. J.

The case involves the validity of a deed of sale to a house and lot in the City of Washington. The appeal is from a judgment of the District Court setting aside the deed and enjoining appellant Mays from the use and occupancy of the property. The suit arose out of a covenant under seal which recites that — -

“Whereas the said parties hereto desire, for their mutual benefit, as well as for the best interests of the said community and neighborhood, to improve in any legitimate way and further the interests of said community and neighborhood;

“Now, Therefore, in consideration of the premises and the sum of five dollars each to the other in hand paid, the parties hereto do hereby mutually agree, promise and covenant, each with the other and for their ■respective heirs and assigns, that no part of the land now owned by the parties hereto, a more definite description of said property being given after the respective signatures hereto, shall ever be used or occupied by, or sold, conveyed, leased, rented or given to Negroes or any person or persons of the Negro race or blood. This covenant shall run with the land and bind the respective parties hereto, their heirs and assigns, for the period of twenty-one years from and after the date of these presents

The covenant is dated September 1, 1925, is signed by three of the four plaintiffs, and is recorded in the land records of the District of Columbia, and accordingly has about a year and seven months to run before expiration by its terms. Appellant Mays, on February 17, 1944, purchased the property known as 2213 First Street, Northwest, from one Jane Cook, presumably a white person, and described as a “straw” party, who in turn had' purchased it from appellant, Consolidated Properties, Inc., expressly for reconveyance to Mays.

The District Court found the facts to be that the grantor in the deed to Cook is a Delaware Corporation, engaged in the purchase and sale of real estate in the District of Columbia, and that the grantee Mays, who purchased through Cook, is a citizen of the United States and a colored person; that the plaintiffs in the suit, who are the appellees here, are white persons and the owners of homes in the same block on First Street, between Adams and W Streets, Northwest; that appellant Mays purchased the property with actual as well as constructive notice of the restrictive covenants, and that all of the adjacent area for six blocks on First Street is likewise covered by similar covenants and is occupied exclusively by persons of the white race. Based on these findings, the District Court adjudged the covenant to be valid and enforceable.

On this appeal it is argued that the judgment should be reversed — (1) because the character of the neighborhood has so changed as to render the original purpose unenforceable; (2) the covenant constitutes an undue and unlawful restraint on alienation; (3) the covenant is not binding on the appellants, who are the successors in interest of the original covenantors, because of lack of privity; and (4) it is contrary to public policy and violates the Constitution of the United States, particularly the Fifth and Fourteenth Amendments and Section 1 of the Thirteenth Amendment and the statutes enacted thereunder, particularly R.S. §§ 1977, 1978 and 5508, 8 U.S.C.A. §§ 41, 42, 18 U.S.C.A. § 51.

The case has been well briefed and well argued, and we have given it our best consideration; but we are unable to find anything in the points we are asked to consider which we have not heretofore considered and decided adversely to appellants’ contentions. As long ago as 1924, in the case of Corrigan v. Buckley, 55 App. D.C. 30, 299 F. 899, we were called on to decide as to the constitutional validity of an identical covenant, and likewise whether such a covenant should be declared to be against public policy. We held in favor of the validity of the covenant and against the claim that its provisions were contrary to public policy. On appeal to the Supreme Court,¹ it was held that neither the constitutional nor statutory questions relied on as grounds for the appeal had any substance or color of merit, or afforded jurisdictional basis for the appeal. In the intervening twenty years the question under similar facts has arisen in at least five additional cases; ² and in the last named of these, the Hundley case, which was decided less than two years ago, we said that, in view of the consistent adjudications by this court that a covenant against Negro ownership or occupation is valid and enforceable in equity by way of injunction, it must now be conceded to be the settled law in this jurisdiction. This is also true in Maryland, where as recently as 1938 the Court of Appeals of that State in Meade v. Dennistone, 173 Md. 295, 196 A. 330, 114 , after discussing all the questions argued here, reached the same conclusion announced by us in Corrigan v. Buckley, supra. Unless, therefore, we are prepared to reverse and annul all that we have said on this subject, and to destroy contracts and tilles to valuable real estate made and taken on the faith of our decisions, it follows that the only question now open for discussion is whether, under the rule announced in Hundley v. Gorewitz, supra, the purpose of the restrictive condition has failed by reason of a change in the character of the neighborhood, so that its enforcement would impose a hardship rather than a benefit upon those who were parties to its terms. In the last mentioned case we said [77 U.S.App.D.C. 48, 132 F. 2d 24]:

“This exception to the rule is applicable in the case of a covenant such as we have here when, in the natural growth of a city, property originally constructed for residential purposes is abandoned for homes of more modern construction in more desirable locations, for a serious decline in values would follow unless the way was open either for use of the property for business purposes or for the housing needs of a lower income class. And it is also applicable where removals are caused by constant penetration into white neighborhoods of colored persons. For in such cases to enforce the restriction would be to create an unnatural barrier to civic development and thereby to establish a virtually uninhabitable section of the city. Whenever, therefore, it is shown that the purpose of the restriction has been frustrated and that the result of enforcing it is to depreciate rather than to enhance the value of the property concerned, a court of equity ought not to interfere.”

Applying this statement of the rule to the facts in this case, it is easily seen from the trial court’s finding of facts that at this time no such change or transformation in the character of the property has occurred.³ No colored people occupy any property in the particular block with which wc are concerned, nor in the block adjacent thereto on First Street in either direction. Indeed, there is no colored occupancy on First Street from T Street north to the Soldiers’ Home Grounds, nor on or to the east of First Street for several blocks, although in blocks to the west of First Street, and separated by an alley, there has been extensive colored penetration. And it may be that in a short time this penetration will reach the territory we are discussing, since, as we were told at the argument, the restrictive covenant on the adjoining block expired November 1, 1944, and the same doubtless may be said of the block in which appellant Mays’ purchase was made, when the covenant as to it expires a little more than a year from now. But for the present it is enough to say that First Street, between U and Adams, and the neighboring properties eastward are an unbroken white community of nearly a thousand homes, under restrictive agreements, most of which are still in effect. From this it is clear the rule in the Hundley case as to change in the character of the neighborhood is not now applicable here. From this it follows that the judgment below was in all respects correct.

In this disposition of the case we have again carefully considered the argument that the covenant, if otherwise valid, constitutes an undue and unlawful restraint-on alienation. It is quite true as to this point that, following the old case of Mandlebaum v. McDonnell,⁴ there are to be found cases in two or three of the States which hold void any and all restraints on alienation* but the doctrine in these cases has been consistently denied in this and in other jurisdictions,⁵ and the weight of authority is opposed to the doctrine. Thus, in the Colorado Springs case,⁶ involving a covenant against the use of land for the sale of intoxicating liquors, the Supreme Court said:

“Repugnant conditions are those which tend to the utter subversion of the estate, such as prohibit entirely the alienation or use of the property. Conditions which prohibit its alienation to a particular person or for a limited period, or its subjection to particular uses, are not subversive of the estate: they do not destroy or limit its alienable or inheritable character.”

The case we have comes clearly under the latter portion of this classification. However, it is said that the covenant does not run with the land because it was not included in a conveyance, i. e., between parties in privity, and since none of the defendants in this suit were parties to the original covenant, . they are not bound thereby. Thus, a distinction is sought to be drawn between a covenant contained in a conveyance made by the parties thereto and one made by the agreement of persons owning separate parcels of adjoining property. But the distinction is without legal effect, for it confuses covenants enforceable at law with those which give rise to rights enforceable in equity.⁷ This was recognized by the Maryland Court of Appeals in the case of Meade v. Dennistone, supra.

In the case we have the parties, as they declared, contracted for their mutual benefit and in the interests of the neighborhood not to permit their land to be sold to, or used by, persons of the Negro race, and made this covenant binding upon their heirs and assigns. The form of the covenant is immaterial and it is not necessary it should run with the land. “A personal covenant or agreement will be held valid and binding in equity on a purchaser taking the estate with notice. It is not binding upon him merely because he stands as an assignee of the party who makes the agreement, but because he has taken the estate with notice of a valid agreement concerning it which he cannot equitably refuse to perform.” Bryan v. Grosse, 155 Cal. 132, 99 P. 499, 501. And likewise in Codman v. Bradley,⁸ it was said:

“It is plain from the language of the indenture that the parties intended a restriction upon each of the five lots in favor of the owners of lots 176 and 177, and their heirs and assigns, which should be for the benefit of the lots, whoever might be the owners of them. It is equally plain that equity will enforce such a restriction. It is not important to determine whether the instrument created a legal estate in the five lots, or precisely what legal estate is created, if any. It created a right enforceable in equity against all persons taking with notice of it, actual or constructive, and this equitable right is in the nature of an easement, even if it rests on no broader principle than that equity will enforce a proper contract concerning land', against all persons taking with notice of it. [Citing cases.] In the present case it plainly appears that the intention of the parties was that their respective promises should be for the benefit of the promisees .as owners of the- neighboring land, and of subsequent owners of these lots. Such a promise may always be enforced in equity by an owner.”

As stated before, rights .created by covenants such as these have been so consistently enforced by us as to become a rule of property and within the accepted public policy of the District of Columbia.

Little need now be said on the subject of that policy. The proposition is not new and was unsuccessfully urged in the Corrigan case, supra, in this court and in the Supreme Court. And nothing is suggested now that was not considered then. The Constitution is the same now as then, and we are cited to no new public laws, nor indeed to any other course or practice of Government officials, which the private action of the original owners of the block in question contravenes. And the public policy of a State of which courts take notice and to which they give effect must be deduced — in the main — from these sources. Surely it may not — properly—be found in our personal views on sociological problems. As to the District of Columbia, we must take judicial notice of the fact that separate schools are established for the white and colored races; separate churches are universal and are approved by both races; and that in the present local housing emergency, large amounts of public and, perhaps also, of private funds have been expended in the establishment of homes for the separate use of white and colored persons. And these accepted practices are not intended to and should not be considered to imply the inferiority of either race to the other.

That the'broad social problem, of which the question in the instant case is but one aspect, is both serious and acute, no thoughtful person will deny. That its right solution in the general public interest calls for the best in statesmanship and the highest in patriotism is equally true. But it is just as true that up to the present no law or public policy has been contrived or declared whereby to eradicate social or racial distinctions in the private affairs of individuals. And it should now be apparent that if ever the two races are to meet upon mutually satisfactory ground, it cannot be through legal coercion or through the intimidation of factions, or the violence of partisans, but must be the result of a mutual appreciation of each other’s problems, and a voluntary consent of individuals. And it is to this end that the wisest and best of each race should set their course.

Affirmed.

1 Corrigan v. Buckley, 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969.

2 Torrey v. Wolfes, 56 App.D.C. 4, 6 F.2d 702; Russell v. Wallace, 58 App. D.C. 357, 30 F.2d 981, certiorari denied 279 U.S. 871, 49 S.Ct. 512, 73 L.Ed. 1007; Cornish v. O’Donoghue, 58 App.D.C. 359, 30 F.2d 983, certiorari denied 279 U.S. 871, 49 S.Ct. 512, 73 L.Ed. 1007; Grady v. Garland, 67 App.D.C. 73, 89 F.2d 817, certiorari denied 302 U.S. 694, 5S S.Ct. 13, 82 L.Ed. 536; Hundley v. Gorewitz, 77 U.S.App.D.C. 48, 132 F.2d 23.

3 “The area adjacent to the property liore in question is residential in character, consisting of row houses, a few business houses and several churches. All of First Street, Northwest, on both sides, from Rhode Island Avenue North to Channing Street, consisting of six city blocks (Channing Street being the most northerly street developed) is occupied solely by persons of the White race, all of said blocks being under Restrictive Agreements or deed covenants prohibiting the ownership, use or occupancy by Negroes. An action is pending covering 2 lots in the 2100 block of First Street, N. W., the Agreement ex-piling November 1, 1944. All of the intersecting streets from First Street eastward to Lincoln Road, south to the North side of T Street, and west to First Street, Northwest, including also North Capitol Street, are likewise solely occupied by persons of the White race and under similar Restrictive Agreements or deed covenants; — a total of approximately one thousand homes, churches and business properties.

“The area west of First Street and Rhode Island Avenue, N. W. is occupied almost exclusively by persons of the Negro race or blood, * * * ”

4 29 Midi. 78, 18 Am.Rep. 61.

5 Corrigan v. Buckley, supra; Torrey v. Wolfes, supra; Russell v. Wallace, supra; Hundley v. Gorewitz, supra; Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641, L.R.A.1916B, 1201, Ann.Cas.1916D, 1248; Koehler v. Rowland, 275 Mo. 573, 575. 205 S.W. 217, 9 A.L.R. 107; Chandler v. Ziegier, 88 Colo. 1, 291 P. 822.

6 Cowell v. Colorado Springs Co., 100 U.S. 55, 57, 25 L.Ed. 547.

7 Tiffany, Real Property, 3d Ed., §§ 858, 862; Meade v. Dennistone, supra; cf. Trustees of Columbia College v. Lynch, 70 N.Y. 440, 26 Am.Rep. 615, 38 N.Y.S.,Ct.of App.Ed., 878, 880; Bryan v. Grosse, infra: Codman v. Bradley, 201 Mass. 361, 87 N.E. 591; Cotton v. Cresse, 80 N.J. Eq. 540, 85 A. 600, 49 L.R.A.,N.S., 357; Erichsen v. Tapert, 172 Mich. 457, 138 NAY. 330. See also Clark, Covenants and Interests Running with Land (1929), c. VI, The Running of Equitable Restrictions.

8 201 Mass. 361, 87 N.E. 591, 593.