*1 Washington, D. Gilligan, Henry Mr. G, appellees. al. BURGESS et MAYS v. GRONER, Justice, and Chief Before 9119. No. CLARK, Associate EDGERTON and Just- Appeals Court of ices. Columbia. District GRONER, G J. Argued Oct. 1945. in this case. is a second affirmed, before When here Oct. 1945. Decided costs, Dis- by and our mandate ordered the effect. trict Court validity of a “re- The case concerned running with the land. strictive covenant” original on the trial District Court in full force and effect pur- Mays, whose and directed defendant covenant, to remove her- violated the chase personal from the self and all of her effects sixty days within premises from the date (June 1944). original appeal ar- here it was On the gued neigh- —“(1) because the of the character changed as borhood has so to render unenforceable; (2) original un- undue and covenant constitutes alienation; (3) lawful restraint appellants, binding who are on the original in interest the successors privity; because of lack covenantors, public policy and contrary (4) the United violates the Constitution of States, particularly the Fifth and Four- teenth Amendments Section statutes Amendment Thirteenth R.S.1977, thereunder, particularly enacted 42; 18 U.S.C.A. 1978 and §§ [8 U.S.C.A. § 51].” opin- held, for reasons We stated EDGERTON, Justice, ion, Associate dissent- there was no merit contentions, appellant specifically ing. purchased with both actual and cove- notice of the terms structive U.S.App.D.C. nant. application was made Thereafter denied Court for certiorari and 18, 1945, 65 S.Ct June however, neg- refused Appellant, judgment of lected accordingly, Septem- appellees was filed ber motion adjudged contempt. September hearing came on for The motion opposition filed in made herself and an affidavit thereto H. Cobb William A. Messrs. James G, Columbia Washington, made real D. with one Hastie, both Hayes agent. purport affi- George estate E. C. Messrs. whom Ransom, appellant had made Washington, D. A. both of davits Leon diligent another home G, appellant. effort to obtain brief, were on *2 L24 live, success, party, for the without other below court judgment this case had original since the showing thereafter received affidavits prop- trial, new purchased four had demanding colored a new families it (the (the Supreme restrictive erty adjoining Court) proceed in the block ordered the having ings block ground covenants on the vacated on land the court expired subsequent of the or- to the had no judgment, date to set aside the Court, Sep- iginal judgment). authority The District “its extending only executing 1945, 27, order in tember entered an mandate.” To the same is In re effect Potts, enforced, re- tempt 166 263, to be unless 41 U.S. 17 S.Ct. Oc- premises moved from on before L.Ed. 994. There a in equity bill in 10, period fringement tober 1945. We extended the patent letters was denied 1, Supreme November the lower appeal court. On Court patent was valid and decided Appellant thereupon took an infringed, had been case re and the was this court. manded. The lower de court entered a Enough show that has been cree conformity mandate af Court, of the District perpetual a injunction against awarded law of established the firmed infringers. infringers Defendant the case. Thereafter the District Court petition then rehearing filed a a on the carry jurisdiction, except out the had no and, newly basis of discovered evidence principle of law mandate of this No court. rehearing, entered a decree is better established than the rule that patent that the letters were void. “by District Court is bound decree Supreme Court, citing In Sanford re case, carry the law of the it Co., supra, pointed Fork & Tool out that execution, They according to mandate. case, case, the instant unlike the Sanford it, vary cannot or examine it for other merely upon question been heard had of Sib execution sufficiency pleading 488, States, 492, 9 12 Pet. L. bald v. United merits, and, validity 1167; Co., accordingly, whole parte Ex Ed. Union Steamboat patent finally 904, must be 44 considered as 178 20 L.Ed. U.S. S.Ct. open settled and not by the reconsideration 1084. The rule has been reiterated prevent A the lower court. rule to Court again, time proceedings further was held be “es- readily be seen an examination proper sential City following administration of the cases: Kansas So. R. Co. v. 1-11, law, and to a Co., 50 reásonable termination of Guardian Trust 281 S.Ct. U.S. 194, litigation chancery 659; parte parties between L.Ed. Ex Union 74 Steam Co., 317,. 904, 178 44 suits.” boat U.S. 20 S.Ct. L. 1084; Co., In re Sanford Fork & Ed. Tool Many other like cases of a nature and 247, 414; 291, 160 40 U.S. 16 S.Ct. L.Ed. might a similar result cited. Caldwell, 148 U.S. Ex Gaines S.Ct. 611, 432; parte Washington 37 L.Ed. When this case was here before Georgetown argued great length & R. 140U.S. was Co., S.Ct. at char 673, 35 L.Ed. 339. In Skillern’s Ex’rs v. acter of the changed had May’s Ex’rs, making Cranch since recording L.Ed. covenants, on certification of points question below, upon whether the court lack of reasonable accommodations discovery of the Columbia, fact that had in ated, District of had now reiter jurisdiction original case, could dis were urged. stressed and We con proceedings, points miss the answered they as the sidered both and held that were finally of the case justify merits decided not sufficient to abrogation required only mandate and its the execution the rule of ap law which this decree, plied consistently the Circuit Court bound was in similar cases over execution, although period twenty-five that decree years. The fact jurisdiction al since the originally below, case heard
leged in the proceeding.
covenant,
See also Wash a similar
covering property in
Stewart,
ington Bridge
Co.
adjoining
How.
an
expired by
block, has
time
parte
11 L.Ed.
Dubuque
Ex
&
purchases
limitation and four
by colored
R.
1Co.,
Pacific
a case
people
Wall.
L.Ed.
made,
not,
even if
Court had it had
decision,
occurred before
of the Circuit Court
As
result.
we said in our for
and remanded the
to enter
opinion,
cause
mer
consisting
homes,
largely
underlying finding
that “no
thousand
approximately
people occupy any property
was ex- colored
properties,
and business
churches
particular
the white
block
occupied by persons of
with which we are con
clusively
cerned,
adjacent
nor
agreements
in the block
race,
similar
thereto
under
restrictive
*3
of
First
infiltration
four
Street
in
direction.”3 Be
either
covenants.
or deed
required
yond
dispute the
have
were
families would
then
colored
Hundley
this
pres
as
in
stated them. But in
applying the rule we did
the
our
contempt
Gorewitz,
132 F.2d
U.S.App.D.C.
proceeding,
ent
filed
has
v.
23,
condition in the
an
which
held the restrictive
District Court
affidavit
where we
change in
that
the states
“since the time
the
de
reason of the
had failed
enforcement
cree and
fil
so
referred to
the
that
its
ing
contempt
ad-
the
adjudge
rather
impose a
than
motion to
in
would
* * *
complied with its
vantage
change
there has been a
to those who
in
neighborhood in
four colored families
terms.
have moved
adjoining
in the
2100 block of
originally
having
heard
The case
been
Street, Northwest, showing
First
merits,
upon
whole
District
colored,
definitely
trend is
others
judgment of that court affirmed
and
by
purchased
locality
property in
be
deemed
this
case
yet occupied
Nothing
but not
same.”
appeal
finally settled. The
without
be
testimony.
the record contradicts this
accordingly
below
merit
dismissed,
affirmed and the
The former decision of
ex
this
costs.
pressly
Hund
left
effect the rule
ley
Affirmed.
case4 that a covenant of this sort will
when,
be
enforced
charac
neighborhood
changed,
ter of the
has
EDGERTON,
(dis-
Associate Justice
accomplish
longer
can no
pur
covenant
its
senting) .
pose
probably
and its enforcement would
Burgess,1 this court decided
Mays
v.
depreciate
property
values which it
injunction of
was
June
If
was intended to enhance.
stat
the facts
it
decision is
law. But
That
still
valid.
necessary
are true
affidavit
September
not follow
order of
that the
does
reconsider,
for the
Court to
appeal,
27, 1945, which is now
should be
on
facts,
light of
applicability
new
these
By
District Court
affirmed.
order
Hundley
rule to this case. Moreover
findings,
even
making
consider
without
suit,
which at
covenant
time of
fact,2
testimony,
questions of
vital
former
years
trial had
more
contempt
appellant for
un
has committed
only
run, now has
ten
to run.
months
complies
less she
Proximity in
occupancy
time of colored
may
bearing
proximity
have as much
as
space,
bearing, upon
or even more
decision was
court’s former
based
This
possible
pre
questions whether it is
finding of
still
primarily on
essential
fact.
neighborhood
the sort of
neighborhood
serve
which
finding
This
was that the
be,
pre
makers
covenant
intended
it
premises in
continued
suit
serve
whether enforcement of
when
covenant
been
the restrictive
likely
increase
or diminish
entirely white,
made,
and that enforce
was
property.
ac
value of the restricted
I
covenant would therefore
ment of the
preserving
duty
it was the District
a think
Court’s
complish
upon
maintaining property
findings
questions
make
of fact
these
based,
turn,
consider,
light
finding
and to
This
such find-
values.
U.S.App.D.C. 343,
complied
appel
F.2d
was not
1 79
1400;
evidently
“Mr.
lees’
denied 05 S.Ct.
Jus
demand. The court’s view
certiorari
Rutledge
Murphy and Mr. Justice
was that
other facts
are
no
were
tice
relevant. Ac
grant
cordingly
opinion
be
that certiorari
the order
does
mention ei
refer,
Justice
and Mr.
Mr.
Reed
Justice
ther
affidavits to which
ed.
shall
I
part
took
in the considera
or the
Jackson
facts which those affidavits assert
application.”
appellees
tion or decision of this
and which
have not denied.
2 Though
no formal
the court made
find
Mays
Burgess,
U.S.App.D.C. 343,
ings
law,
fact or
conclusions
or
345,147
expressly
der
the facts
states
4 Hundley
Gorewitz,
U.S.App.D.C.
is based. These facts
the in
are
junction
granted
affirmed,