Hurd v. Hodge , 162 F.2d 233 ( 1947 )

CLARK, Associate Justice.

By these appeals we are once again called upon to determine the validity of a restrictive deed covenant expressed in the following terms: “Subject also to the covenants that said lot shall never be rented, leased, sold, transferred or conveyed unto any Negro or colored person, under a penalty of Two Thousand Dollars ($2000), which shall be a lien against said property.”

The area involved in these actions is the first 20 lots of the 100 Block of Bryant Street, Northwest, improved by dwellings known as 114 to 152 Bryant Street, Northwest. All of these lots and dwellings were sold subject to the above restrictive deed covenant. The adjoining 11 lots improved by dwellings known at 154 to 174 Bryant Street, Northwest, are not subject to any such restriction and have been continuously occupied by Negroes for 20 years. The occupancy by white persons of the 20 lots and dwellings subject to the restriction has been continuous¹ until the four deeds² complained of in these actions.

The final judgment of the District Court from which these appeals were taken dc-dared null and void these foúr deeds to the Negro purchasers, ordered them to vacate the land and premises and permanently enjoined the renting, selling, leasing, transferring or conveying the said lots to any Negro or colored person.

The validity of the restrictive deed covenant before us now has been upheld by this Court on numerous occasions. Torrey v. Wolfes, 56 App.D.C. 4, 6 F.2d 702; 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, 58 S.Ct. 13, 82 L.Ed. 536; Hundley v. Gorewitz, 77 U.S.App.D.C. .48, 132 F.2d 23, 24, wherein we said: “In view of the consistent adjudications in similar cases, it must now be conceded that the settled law in this jurisdiction is that such covenants as this are valid and enforceable in equity by way of injunction.”

Similarly, restrictive -covenants expressed in agreements between the owners of land have been Upheld by this Court in the following cases: Corrigan v. Buckley, 55 App.D.C. 30, 299 F. 899, appeal dismissed 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969; 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; Mays v. Burgess, 79 U.S.App.D.C. 343, 147 F.2d 869, 871, 162 A.L.R. 168, certiorari denied, 325 U.S. 868, 65 S.Ct. 1406, 89 L.Ed. 1987, rehearing denied 325 U.S. 896, 65 S.Ct. 1567, 89 L.Ed. 2006.

The appellants here have presented no contention that is not answered by those decisions. Thus, what we said in Mays v. Burgess when it was before us for the first time is applicable here; “Unless, therefore, we are prepared to reverse and annul all that we have said on this subject, and to destroy contracts and titles to valuable real estate made arid 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.” We went on, in that case, to hold that “no such change or transformation in the character of the property has occurred.” Mays v. Burgess involved the same area as that concerned in the instant cases and is controlling here, especially in view of what we said when that case was before us for a sec-on time, 80 U.S.App.D.C. 236, 152 F.2d 123, 124: “When this case was here before it was argued at great length that the character of the neighborhood had changed since the making and recording of the covenants, and the points of hardship and lack of reasonable housing accommodations in the District of Columbia, now reiterated, were stressed and urged. We considered both points and held that they were not sufficient to justify the abrogation of the rule of law which this court had applied consistently in similar cases over a period of twenty-five years. The fact that since the case was originally heard below, a similar covenant, covering property in an adjoining block, has expired by time limitation and four purchases by colored people have been made, would not, even if it had occurred before decision, have changed the result. As we said in our former opinion, the neighborhood, consisting of approximately one thousand homes, churches and business properties, was exclusively occupied by persons of the white race, under similar restrictive agreements or deed covenants. The infiltration of four colored families would not have required our applying the rule we did in Hundley v. Gorewitz, 77 U.S.App.D.C. 48, 132 F.2d 23, where we held the restrictive condition had failed by reason of the change in the neighborhood, so that its enforcement would impose a hardship rather than an advantage to those who complied with its terms.” It is to be further noted that while the “change in neighborhood” argument was presented to us in appellants’ brief, this contention was expressly repudiated by appellant Urciolo at oral argument.

In re-affirming our holding that the restrictive deed covenant here involved is valid and enforceable by injunction we have again thoroughly considered the contention that such a' restriction constitutes an illegal restraint on alienation. We adhere to what we said on this point in Mays v. Burgess, 79 U.S.App.D.C. 343, at page 345, 147 F.2d 869, 162 A.L.R. 168. Although that case involved a restriction which was to be in effect for a designated length of time, 21 years only, and the instant covenant involves a perpetual restriction, we adopt what we said there as applying here. We note that there is a decided division in authority as to the validity and enforceability of such a perpetual restriction.³ We further note that in some jurisdictions the validity of the restrictive covenant or agreement turns on a distinction in terminology between restrictions as to ownership and restrictions as to use and occupation.⁴ Such restrictions as to use and occupancy are generally held valid and enforceable in equity, even in those jurisdictions holding restrictions on ownership invalid as restraints on alienation.⁵

However, in this jurisdiction the validity and enforceability of the covenant or agreement does not turn on such a distinction and we have no conflict in our decisions, which have, for over 25 years, uniformly upheld the validity of these restrictive conditions, whether by deed covenant or agreement between property owners, whether for a designated length of time or perpetual, and whether against alienation, use and occupancy or both.⁶ We observe that in other jurisdictions the majority of recent decisions are in accord with our holding.⁷ See also The American Law Institute’s Restatement of The Law of Property, dealing with Perpetuities and other Social Restrictions, Sec. 406, Comments 1 and o.

Affirmed.

1 Except for three transactions where the Negroes involved either did not occupy or moved on protest without the necessity of legal proceedings.

2 Deed dated May 4, 1944, and recorded May 9, 1044, as Instrument No. 32591 among the Land Records of the District of Columbia, from Francis X. Ryan and Mary R. Ryan, his wife, to James M. Hurd and Mary I. Hurd, his wife, concerning Lot 114, Square ,‘5125, improved by premises 116 Bryant Street, Northwest; deed dated March 10, 1945, and recorded March 23, 1945 as Instrument No. 9208 among the Land Records of the District of Columbia, from Raphael G. Urciolo and Florence E. Urciolo, his wife, to Robert H. Rowe and Isabelle J. Rowe, his wife, concerning Lot 113, Square 3125, improved by premises 118 Bryant Street, Northwest; deed dated March 33, 1945, and recorded March 30, 1945 as Instrument No. 10582 among the Land Records of the District of Columbia, from Florence E. Urciolo to Herbert 13. Savage and Georgia N. Savage, his wife, concerning Lot 144, Square 3325, improved by promises 134 Bryant Street, Northwest; and deed dated March 9, 1945, and recorded March 21, 1945 as Instrument No. 9210 among the Land Records of the District of Columbia, from Florence E. Urciolo to Pauline B. Stewart concerning Lot 130, Square 3.125, improved by premises 350 Bryant Street, Northwest.

3 162 A.L.R. 180, supplementing annotations in 114 A.L.R. 32,37, 06 A.L.R. 531 and 9 A.L.R. 120; 5 Tiffany Real Property, 3d Ed., Sec. 1345.

4 Mays v. Burgess, 79 U.S.App.D.C. 343, 147 F.2d 869, 162 A.L.R. 180.

5 Burkhardt v. Lofton, 63 Cal.App.2d 230, 146 P.2d 720; Fairchild v. Raines, 24 Cal.2d 818, 351 P.2d 260; Stone v. Jones, 66 Cal.App.2d 264, 152 P.2d 19.

6 See cases cited from this jurisdiction, supra.

7 Dooley v. Savannah Bank & Trust Co., 199 Ga. 353, 34 S.E.2d 522 (perpetual); Lion’s Head Lake v. Brzezinski, 43 A.2d 729, 23 N.J.Misc. 290 (perpetual); Lyons v. Wallen, 391 Okl. 567, 133 P.2d 555 (99 years); Steward v. Cronan, 105 Colo. 393, 98 P.2d 999 (designated length of time); Thornhill v. Herdt, Mo.App., 130 S.W.2d 175 (20 years); Vernon v. R. J. Reynolds Realty Co., 226 N.C. 58, 36 S.E.2d 710 (50 years).