196 A. 330 | Md. | 1938
This appeal is from a decree enjoining Edward Meade, a negro, and his family, from using or occupying the house and premises known as No. 2227 Barclay Street, in the City of Baltimore, enjoining him "from procuring, *297 authorizing or permitting any Negro or Negroes, or person or persons, either in whole or in part of Negro or African descent to use or occupy said premises," and enjoining Frank Berman, Edward Meade's vendor or assignor, from permitting Edward Meade and his family, or any other negroes or persons of African descent, from occupying the premises.
The bill of complaint was filed by Mary Estelle Dennistone, the owner of No. 2221 Barclay Street, and Mary J. Becker, the owner and occupant of No. 2234 Barclay Street, who had, with fifteen other owners of property in the 2200 block on Barclay Street, one of them owning two houses, by agreement dated November 14th, 1927, duly acknowledged and recorded, covenanted and agreed, each with the others, for themselves, their personal representatives and assigns, that neither the said respective properties nor any of them nor any part of them or any of them shall be at any time occupied or used by any negro or negroes or person or persons either in whole or in part of negro or African descent except only that negro or persons of negro or African descent either in whole or in part may be employed as servants by any of the owners or occupants of said respective properties and as and whilst so employed may reside on the premises occupied by their respective employers nor shall any sale, lease, disposition or transfer thereof be made or operate otherwise than subject to the aforesaid restrictions as to and upon use and occupancy", that all the covenants, conditions, etc., shall "run with and bind the land," and shall be enforceable by any one owning or having any interest in any of the properties affected. The final provision was: "That a majority of the parties to this agreement may by an instrument in writing duly executed acknowledged and recorded according to law at any time after the execution of this agreement remove the entire property affected by this agreement from the operation and effect of this agreement."
According to the record: "The agreement dated on November 14, 1927, was proposed as a result of a meeting *298 of the property owners in an area of twenty-four square blocks bounded on the north and south by Twenty-fifth Street and North Avenue and on the east and west by Barclay and Charles Streets." This area included six blocks on Barclay Street, but we are only concerned in this case with the 2200 block on Barclay Street.
No. 2227 Barclay Street was owned and the agreement executed by Anne M. Tighe, Francis L. Tighe, Mary V. Tighe, and Anna R. Gugerty, who, by deed of May 27th, 1935, conveyed to Florus Barry, who, on the same day conveyed to Mary V. Tighe and Anna R. Gugerty, and they, by deed of November 4th, 1935, conveyed to Frank Berman. On October 22d 1936, Berman contracted to sell to Edward Meade, a negro, for $1,100, on account of which he paid $150 in cash, the balance to be paid in monthly installments. Meade entered into possession, and, with his family, occupied the house, and on November 24th, 1936, the bill for injunction against him and Berman was filed. No. 2238 Barclay Street, at the corner of Twenty-third Street, is owned and occupied by negroes and was not included in the agreement. It has a dressmaking shop, with an entrance on Barclay Street, run by two colored women who cater exclusively to white trade; the second floor, entered from Twenty-third Street, is occupied by a colored man and his wife. This is the only house from North Avenue to Twenty-fifth Street, six blocks and a half, occupied by colored people. Intersecting streets, Twenty-second and a Half and Twenty-third Streets and Guilford Avenue, one block east, are heavily populated by negroes. Since the signing of the agreement of November 14th, 1927, there has been no occupancy of Barclay Street by negroes until the present instance. The owners of eleven properties in the 2200 block on Barclay Street did not join in the agreement, but they have since then undertaken to bring themselves in, as noted farther on.
Mrs. Becker, one of the plaintiffs, testified that it was her understanding that all of the owners in the block would sign the agreement, and, while she would not have *299
been interested in signing unless all would, she "thought a majority ruled." She testified without objection that "after the corner house was sold there was new families moved and bought property there, and then they got together and signed up those other eleven houses." Mrs. Dennistone testified: "When they came to me to sign the agreement they had not gotten all the signatures. I did not know they had not later gotten all and I do not know it now. I knew they were going to all of them to get them. They came to me before they had gone to the rest. I did not know 2238 was signed up until the present time." She said she would have signed whether all were obtained or not. Plaintiffs offered in evidence an agreement to the same effect as the one in evidence "signed by a number of property owners" in the 2200 block (number not mentioned), who had not signed the original agreement, executed and recorded December 14th, 1936. It had been executed July 21st, 1936, but was defectively acknowledged. On objection by the defendants it was not admitted, though Mrs. Becker's statement was in without objection. Laporte v.Pennsylvania-Dixie Cement Corp.,
The defendants contend that the agreement is a personal covenant and does not run with the land; is contrary to public policy; that there is no privity of estate or contract between the covenantor and the covenantee's assignee; is an unreasonable restraint on alienation; the reasons for its execution no longer obtain; is repugnant to the grant; and that its enforcement would be in violation of the Fourteenth Amendment to the Federal Constitution. The converse of each of these contentions is as vigorously maintained by the plaintiffs.
It is not contended that either the State, through its Legislature, or the City of Baltimore, by ordinance, can enforce segregation of the white and colored populations. The question arose in this state in the case of State v. Gurry,
It has been held, and frequently, that segregation is allowable on railroads, in schools and in public places, provided equal facilities are afforded (Lee v. State,
The large, almost sudden, emigration of negroes from the country to the cities, with the consequent congestion in colored centers, has created a situation about which all agree something ought to be done. In Baltimore City, with a population of about 850,000, one-seventh is negro, occupying a relatively small portion of the city's territory, though the colored area has been, in the last several years, rapidly expanding. Since the decisions under the Fourteenth Amendment, supra, no public action can be taken to solve what has become a problem, and property owners have undertaken to regulate it by contract.
The contention that the defendant is denied by this contract the equal protection of the laws under the Fourteenth Amendment has been settled by decisions of the Supreme Court that the constitutional inhibition is upon the power of the state, and not on the right of individuals to contract with respect to their property. United States v. Cruikshank,
The defendants contend that this is a covenant that does not run with the land, that it is personal only to the parties to the original agreement, and not to the assignees or grantees of any of them. In our opinion this contention is answered in the case of Trustees of Columbia College v. Lynch,
The important question then is whether the parties to the agreement have imposed such a restraint on the alienation of their respective properties as to render the agreement void. The solution of this question, in the cases which have arisen, turns upon the application of the fifteenth century dicta of Sir Thomas Littleton with regard to the restrained disposition of individual property, which found its clearest expression in Judge Christiancy's opinion, according to Gray, Restraints onAlienation, in the case of Mandlebaum v. McDonell,
The weight of authority is that a total restraint on alienation, for an unlimited time, to a limited class, is void, though there is difference of opinion whether time can affect the question of the application of the rule. Mandlebaum v. McDonell,supra. The rule is founded on the theory that such restraints take property out of commerce, and we have decided in this state that conditions or limitations in restraint of alienation cannot be validly annexed to a grant or devise of an estate in fee (Clark v. Clark,
In the last thirteen years the Court of Appeals of the District of Columbia, beginning with Corrigan v. Buckley, 55 App. D.C. 30, 299 Fed. 899, decided June 22d 1924, has upheld four restrictive deeds, two of which were on conditions inserted by the owners of the entire tract, that the grantee, his heirs and assigns, should not sell or lease to negroes, the other two cases, with substantially the same provision, having been on an agreement between the several owners of property, as in this case. The other three cases were, Torrey v. Wolfes, 56 App. D.C. 4,
The rules against restraints on alienations were only intended to make conveyancing free and unrestrained, and had nothing to do with use and occupancy. It may be an anomalous situation when a colored man may own property which he cannot occupy, but, if he buys on notice of such a restriction, the consequences are the same to him as to any other buyer with notice. There is no law which forbids the property owners to agree that any given territory shall be all white or all colored. As was said by the chancellor in Parmalee v. Morris, supra, adopted by the Supreme Court of Michigan in its opinion: "The law is powerless to eradicate racial instincts or to abolish distinctions which some citizens do draw on account of racial differences in relation to their matter of purely private concern. For the law to attempt to abolish these distinctions in the private dealings between individuals would only serve to accentuate the difficulties which the situation presents. * * * Whether this action on the part of the owner was taken to make the neighborhood more desirable in his estimation or to promote the better welfare of himself and his grantees is a consideration which I do not believe enters into a decision of the case."
The defendants contend that the reasons for the agreement no longer obtain, that is, that the character of the neighborhood has so changed as to make the agreement ineffectual to accomplish its purpose, "by reason of the large number of colored people now occupying properties close to the 2200 block of Barclay Street, No. 2238 Barclay Street is occupied by colored people, and two intersecting streets are largely populated by them." No. 2238, which *308
is at the corner of Twenty-third Street, is the only house on Barclay Street, with the exception of the house No. 2227, now occupied by the defendant Meade, in which colored people reside. This does not show such a change in the neighborhood as to nullify the agreement and render it useless. If there had been such a change, and as a result property became untenanted and unmarketable, equity might relieve the parties of the burden of their agreement. This is what happened to the street in New York affected by the agreement in Trustees of Columbia College v.Lynch, supra, intended to protect the neighborhood as a residential section. The building of an elevated railway, and the establishment of shops and stores, defeated the purpose of the agreement, and the same was later voided by the decision inTrustees of Columbia College v. Thacher,
The only other question is whether this agreement was entitled to recording under the provisions, so as to put the defendant Meade on notice of it. Lambert v. Morgan,
It is our opinion, therefore, that this agreement is lawful and enforceable, not opposed to the public policy of this state, of which the defendants had constructive notice, and the decree should be affirmed.
Decree affirmed, with costs.
BOND, C.J., dissents.