Meade v. Dennistone

Sloan, J., delivered the opinion of the Court. 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 Baltimore1, 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 22nd, 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., 164 Md. 642, 649 , 165 A. 195 , 168 A. 844 . 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, 121 Md. 534 , 88 A. 546 , but, while the ordinance was held invalid, the question of segregation was not decided. After the decision in Buchanan v. War ³⁰⁰ ley, 245 U. S. 60 , 38 S. Ct. 16 , L. Ed. 149, L. R. A. 1918C, 210, where a segregation ordinance of the City of Louisville, Kentucky, was held invalid as in violation of the Fourteenth Amendment, any efforts in this direction by any state legislature or subdivision of a state must fail.

Tyler v. Harmon, 158 La. 439 , 104 So. 200 ; Harmon v. Tyler, 273 U. S. 668 , 47 S. Ct. 471 , 71 L. Ed. 831 ; State v. Darnell, 166 N. C. 300 , 81 S. E. 338 ; Carey v. Atlanta, 143 Ga. 192 , 84 S. E. 456 . After State v. Gurry, supra, another segregation ordinance was passed by the City of Baltimore, which, following the Wwrley case in the Supreme Court, was held invalid in Jackson v. State, 132 Md. 311 , 103 A. 910 . 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, 164 Md. 550 , 165 A. 614 ), and disallowed when they are not. University of Maryland v. Murray, 169 Md. 478 , 182 A. 590 ; Maddox v. Neal, 45 Ark. 121 ; Williams v. Board of Education, 79 Kan. 202 , 99 P. 216 ; Roberts v. Boston, 5 Cush.

(Mass.) 198; Berea College v. Kentucky, 211 U. S. 45 , 29 S. Ct. 33 , 53 L. Ed. 81 ; Id., 123 Ky. 209 , 94 S. W. 623 ; Plessy v. Ferguson, 163 U. S. 537 , 16 S. Ct. 1138, 1140 , 41 L. Ed. 256 ; West Chester & P. Ry. Co. v. Miles, 55 Pa. 209 . In Plessy v. Ferguson, supra, the question was the validity of a statute of Louisiana requiring railways, carrying passengers in that state, to provide separate accommodations for white and colored passengers.. In holding that such an act was not in violation of the.

Fourteenth Amendment, the Supreme Court, in an opinion by Mr. Justice Brown, said: “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions, based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where’ they are liable to be brought into contact, do not neces ³⁰¹ sarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exej^ise of their police power.” See, also, the opinion of Judge Agnew in West Chester & Philadelphia R. Co. v. Miles, 55 Pa. 209 , and of Chief Justice Shaw in Roberts v. Boston, 5 Cush. (Mass.) 198. It is not easy to explain the distinction between the decisions which say that segregation is allowable on trains, in schools and in public places, and those which say that it cannot be done with respect to residence in cities, in many of which it has become a problem, more social than legal, of which to date there has been no satisfactory solution. 32 Michigan Law Review 721.

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 85.0,000, 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, 92 U. S. 542 , 23 L. Ed. 588 ; Virginia v. Rives, 100 U. S. 313 , 25 L. Ed. 667 ; United States v. Harris, 106 U. S. 629 , 1 S. Ct. 601 , 27 L. Ed. 290 ; Civil Rights Cases, 109 U. S. 3, 31 , 3 S. Ct. 18 , 27 L. Ed. 835 . In the case of Corrigan v. Buckley, 55 App. D. C. 30, 299 Fed. 899, 900 , the District of Columbia Court of Appeals upheld an agreement entered into by twenty-nine property-owners in the District of Columbia, whereby ³⁰² they agreed, each with the others, that no part of their respective lands “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 heirs and assigns of the parties hereto for the period of twenty-one (21) years from and after the date of these presents.” The suit was to restrain Corrigan, one of the parties to the contract, from selling to a colored man named Curtis. On appeal, Corrigan v. Buckley, 271 U. S. 323 , 46 S. Ct. 521, 523 , 70 L. Ed. 969 , the defendants, appellants, contended that the contract violated their rights under the Fifth, Thirteenth and Fourteenth Amendments. “This contention,” said the court, “is entirely lacking in substance or color of merit. * * * None of these amendments prohibited private individuals from entering into contracts respecting the control and disposition of their own property,” and “the appeal must be, and is dismissed for want of jurisdiction.” The constitutional question here raised having been thus settled by an authority which, unless and until overruled, must be accepted, the only thing for us to decide is whether the agreement before us is adequate to accomplish the purpose intended, or whether it can be done at all.

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, 70 N. Y. 440, 448 , where it was said: “It is strenuously urged * * * that there was no privity of estate between the mutual covenantors and covenantees, in respect of the premises owned by them respectively, and which were the subjects of the covenants and agreements, and that the covenants did not therefore run with the lands, binding the grantees, and subjecting them to a personal liability thereon. This may be conceded for all the purposes of this action. It is of no importance whether an action at law could be main ³⁰³ tained against the grantees of Beers, as upon a covenant running with the land and binding them.

Whether it was a covenant running with the land or a collateral covenant, or a covenant in gross, or whether an action at law could be sustained upon it, is