Lee v. Hansberry Records and Briefs

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Appellate Court of Illinois
F irst  D istrict

______________ < r

ANNA M. LEE, EDWARD L. GOVANUS, ESTHER^ 
GOVANUS, LOUISE G. ANDERSON, LYMAN M. 
ANDERSON and KATHRYN LUTTRELL,

Appellees,
vs.

Interlocutory 
Appeal from

Circuit Court,
Cook County.

CARL A. HANSBERRY, NANNIE L. HANSBERRY, 
JAY B. CROOK, HALLLE C. CROOK, JAMES JOSEPH 
BURKE, HARRY H. PACE, SUPREME LIBERTY 
LIFE INSURANCE COMPANY, a corporation, ISRAEL 
KATZ, et at,

>
Honorable 

Michael Feinberg, 
Judge Presiding.

Appellants.^

Brief and Argument for Appellants.

EARL B. DICKERSON,
TRUMAN K. GIBSON, JR.,
C. FRANCIS STRADFORD, 
LORING B. MOORE,
IRVIN C. MOLLISON,

Attorneys for Appellants.

C H IC A G O  L A W  P R IN T IN G  C O . .  111 N . W A C K E R  D R I V E  (C O R . W A S H I N G T O N  S T . )  T E L . F R A N K L IN  0821



T







IN  T H E

A P P E L L A T E  C O U R T  O F  I L L I N O I S

F ir s t  D is t r ic t

ANNA M. LEE, EDWARD L. GOVANUS, 
ESTHER GOVANUS, LOUISE G. AN­
DERSON, LYMAN M. ANDERSON and 
KATHRYN LUTTRELL,

Appellees,

\

Interlocutory 
Appeal from

Circuit Court,
Cook County.

CARL A. HANSBERRY, NANNIE L. HANS- 
BERRY, JAY B. CROOK, HALLIE C. 
CROOK, JAMES JOSEPH BURKE, 
HARRY H. PACE, SUPREME LIBERTY 
LIFE INSURANCE COMPANY, a corpora­
tion, IRAEL KATZ, et al.,

Appellants.

Honorable 
Michael Feinberg,

Judge Presiding.

Brief and Argument for Appellants.

STATEMENT OF THE CASE.

M a y  I t  P le a s e  T h e  C o u r t :

This is an interlocutory appeal from an order of the 
Circuit Court entered July 8, 1937, granting a temporary 
injunction restraining Carl A. Hansberry and Nannie L. 
Hansberry, defendants, from collecting or attempting to 
collect rent from the second and third apartments of 
the building commonly known as 6140 Rhodes Avenue, 
Chicago, Illinois, now occupied by the defendants, W. T. 
Mooney and Elizabeth Cotzones, and from placing Ne­
groes as tenants or in occupancy of the rooms on the 
second and third apartments of said building, or in either 
of said apartments, and directing that said Carl A. 
Hansberry and Nannie L. Hansberry vacate and give up 
possession and occupancy of said premises or any part



2

thereof, within ninety days from July 8, 1937; and re­
straining James Joseph Burke, defendant, directly 
or indirectly, from leasing to, bargaining with, sell­
ing or attempting to lease, bargain or sell any real 
estate within the area described in the complaint as 
Washington Park Subdivision to Negroes or to white 
persons for the purpose of leasing or selling such real 
estate to Negroes, or placing Negroes in such properties; 
and restraining Israel Katz, defendant, from selling or 
leasing the building known as 6018 Vei’non Avenue, Chi­
cago, Illinois, to Negroes or to any white person for 
resale or leasing to, or occupancy by Negroes, except 
such janitors, chauffeurs, or servants actually employed 
as such for service in and about the said premises by 
the rightful owner or occupant of said premises; and 
further restraining the defendants, Harry H. Pace and 
Supreme Liberty Life Insurance Company, and each of 
them, their agents, officers or attorneys, directly or in­
directly, from making any further loans to Negroes or 
to white persons for Negro occupancy on real estate in 
said Washington Park Subdivision in Chicago, Illinois, 
shown by the records in the recorder’s office of Cook 
County, Illinois, to be restricted by the restrictive agree­
ment filed for record, February 1, 1928, as Documents 
9914711, 9914712, 9914713 and 9914714 (Abst. 23-27).

Pleadings.

Anna M. Lee, a widow, Edward L. Govanus, Esther 
Govanus, his wife, Louise G. Anderson, a widow, Lyman 
Id. Anderson, her son, Kathryn Luttrell, on behalf of 
themselves and on behalf of other plaintiffs similarly 
situated, allege that they are residents of the City of 
Chicago, and that on the 30th day of September, A. D. 
1927, more than 500 white persons, owners of real estate 
on one or the other side of Champlain, St. Lawrence, 
Rhodes, Eberhart, Vernon and South Park Avenues, be­
tween 60th Street on the north and the first public alley 
north of 63rd Street on the south (except those parts of



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Champlain and Langley Avenues and 60th Street owned 
by the Board of Education of the City of Chicago, occu­
pied by the Austin 0. Sexton Public School) and on 
60th, 61st and 62nd Streets, between South Park Ave­
nue and the alleys immediately west of Cottage Grove 
Avenue, and on both sides of Langley Avenue between 
61st Street and the first public alley north of 63rd Street, 
in the City of Chicago, entered into a written agreement 
with each other that until January 1, 1948, their respec­
tive real estate in said area should be subject to certain 
restrictions and provisions against use, occupation or 
ownership of said real estate in said area by Negroes, 
and against the sale, conveyance or leasing of any part 
of said premises to any Negro; that it is provided in 
said restrictive agreement that said agreement should 
be in full force and effect when it or a substantially 
similar agreement should be signed by the owners of 
ninety-five per centum of the frontage above described 
and recorded in the office of the recorder of deeds of 
Cook County, Illinois, on or before December 31, 1928; 
that ninety-five per centum of the owners of the front­
age above described, signed, sealed and acknoAvledged 
said restrictive agreement, and thereafter the same was 
duly filed for record in the recorder’s office of said county 
on February 1, A. D. 1928 (Abst. 1-2, 8).

That on the date of the execution of said restrictive 
agreement and on the date of the recording thereof, Eva 
Somerman was the owner of record of the premises 
known as 6140 Rhodes Avenue, Chicago, Illinois, which 
premises are improved with a three-story and basement 
residence and which real estate is situated within the 
area covered by said restrictive agreement; that said 
Eva Somerman executed and acknowledged the said 
agreement before the recordation thereof, and up to, 
to wit: The 26th day of May, 1937, the said premises 
were owned and occupied by white persons exclusively; 
that said Eva Somerman and her husband conveyed 
said premises to one Joseph G. Stoltz by quitclaim deed



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dated March 30, 1933, recorded March 31, 1933; that 
said Joseph G. Stoltz by quitclaim deed dated March 31, 
1933, recorded April 27, 1933, conveyed said premises 
to the First National Bank of Englewood, a corporation.

The complaint further alleges that the defendant, 
James Joseph Burke, acting on behalf of the defendants, 
Hansberry, a Negro, and Harry H. Pace, Negro attor­
ney and secretary of the Supreme Liberty Life Insur­
ance Company, a corporation,

“ fraudulently and knowingly and deceitfully repre­
sented to said First National Bank of Englewood, 
or its officers, that said premises would not he sold 
to a Negro or Negroes, and by such fraud, deceit 
and misrepresentations induced the officers of said 
First National Bank of Englewood, a corporation, 
to execute a conveyance of said premises to the de­
fendant, Jay B. Crook, a white person; that said 
Crook well knew when he accepted the deed from 
said National Bank of Englewood, that said prem­
ises were actually being purchased for and on be­
half of the defendant Paul A. Hansberry; that in 
fact said Crook was then in unlawful conspiracy 
and combination to violate said restrictive agreement 
with the defendant, Harry H. Pace; that on May 
19, 1937, said Jay B. Crook and his wife, Hallie C. 
Crook, executed and delivered a trust deed to Chi­
cago Title & Trust Company, as Trustee, on said 
premises to secure their note for Forty-four Hun­
dred Dollars ($4400.00) to the defendant, Supreme 
Liberty Life Insurance Company; that the trust deed 
and the quitclaim deed from the bank to Crook were 
recorded simultaneously; that in furtherance of said 
conspiracy, said defendant, Hansberry, on May 26, 
1937, moved into and took possession of the first 
apartment and basement of the premises known as 
6140 Rhodes Avenue; and thereafter on May 27, 
1937, said Jay B. Crook and his wife conveyed said 
premises to said defendants, Paul A. Hansberry 
and Nannie L. Hansberry, his wife, who are now 
in possession”  (Ahst. 10-11).

The complaint further represents that the defendants 
had actual knowledge of the said restrictive agreement;



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that said James Joseph Burke resigned as executive 
secretary of the Woodlawn Property Owners Associa­
tion on March 1, 1937, and since that date wilfully and 
maliciously has been conspiring with the defendants, Paul 
A. Hansberry, Harry H. Pace and other Negroes to place 
Negroes either as tenants or owners into possession of 
real estate in said restricted area; that on various occa­
sions within the past five or six weeks the said defend­
ant James Joseph Burke has stated as follows:

“ I am going to put niggers into twenty or thirty 
buildings in the Washington Park Subdivision; I 
will get even with the Woodlawn Property Owners’ 
Association by putting niggers in every block.”

That said Burke was instrumental both in the sale of 
413 East 60th Street and 6140 Rhodes Avenue, Chicago, 
to Negroes, and plaintiffs fear that the plaintiff, Burke, 
will carry out his threats unless restrained from doing 
so by injunction (Abst. 12).

The complaint further alleges that the plaintiffs, Lee, 
Govanus and Anderson were parties to and signers of 
the said restrictive agreement before and at the time 
of the recording thereof; that plaintiff Kathryn Lutt- 
rell derived title to the premises at 6138 Rhodes Ave­
nue, Chicago, by means of conveyances from Patrick 
T. Burke, one of the signers of said agreement. That 
Lee is the owner of a building at 6,148 Rhodes Avenue; 
that plaintiffs, Govanus are the owners of a building at 
6142 Rhodes Avenue; and that plaintiffs, Andersons 
are the owners of buildings at 6117 and 6110 Eberliart 
Avenue; that the plaintiff, Luttrell is the owner of a 
building at 6138 Rhodes Avenue; that all of the plaintiffs 
and buildings are within the said restricted area and 
had a total value of upwards of $100,000; that plaintiffs 
have ever since said restrictive agreement went into 
effect, observed the covenants and restrictions therein 
contained with respect to ownership, use and occupancy. 
That by reason of the violation of said agreement by 
defendant, Hansberry, the plaintiffs’ real estate has been



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irreparably damaged in value and tenants of the plain­
tiffs, all of whom are white persons, are threatening to 
break their leases.

Plaintiffs’ complaint further alleges that the plaintiff, 
Luttrell, had just before Hansberry took possession of 
his building, leased one of her apartments to a respons­
ible tenant at $55 a month; that since Hansberry took 
possession of said premises the tenant has refused to 
move into her building and that plaintiffs will suffer other 
irreparable injury to their property and property rights 
unless the defendants, Hansberry and wife, are com­
pelled by the decree of this Court to vacate the premises; 
that the restrictive agreement has been in full force and 
effect ever since the same was executed and recorded, 
and that all the owners and occupants of the property 
within said restricted area except on South Park Avenue 
between 60th and 61st Streets and a three apartment 
building on 60th Street between South Park Avenue 
and Vernon Avenue, are white persons; that said owners 
are desirous that said restrictive agreement remain in 
full force and effect and plaintiffs bring this action on 
their own behalf and on behalf of and as representa­
tives of other owners of premises in said restricted area 
similarly situated (Abst. 13-14).

The complaint further alleges that proceedings are 
pending against Negro occupants of premises on South 
Park Avenue between 60th and 61st Streets; that the 
defendants, W. T. Mooney and Elizabeth Cotzones are 
white tenants in the building at 6140 Rhodes Avenue, 
and refuse to pay rent to said Paul A. Hansberry and 
Nannie L. Hansberry and refuse to attorn to said Paul 
A. Hansberry and Nannie L. Hansberry as landlords 
and owners; that said Hansberry and wife threaten to 
dispossess said Mooney and Cotzones from said prem­
ises in order to move other Negroes into said building.

It is further represented in said complaint that the 
defendant, Israel Katz, is the owner of a building known 
as 6018 Vernon Avenue; that said Katz executed said



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restrictive agreement and on May 27, 1937, threatened 
to sell the building to Negroes (Abst. 14-15).

The complaint further alleges that defendant Pace, 
Negro secretary of the defendant Supreme Liberty Life 
Insurance Company, in conspiracy and combination with 
other defendants, is encouraging the violation of said 
restrictive agreement by making loans to Negroes for 
the purpose of acquiring real estate within said restric­
tive area; that said Pace is an active executive of said 
Supreme Liberty Life Insurance Company, a corpora­
tion, and as such executive has caused said insurance 
company to make an excessive loan on premises now 
occupied by said Pace at 413 East 60th Street, aiid on 
premises now occupied by said Hansberry at 6140 Rhodes 
Avenue (Abst. 15).

The defendants resisted the application of plaintiffs 
for temporary injunction by oral argument and in sup­
port thereof filed motions to strike the complaint and 
to dismiss the suit. The defendants, Carl A. Hansberry 
(sued as Paul A. Hansberry) and Nannie L. Hansberry, 
filed their joint motions to strike and dismiss (Abst. 
16-18) and the defendants, James Joseph Burke, Harry 
H. Pace, Supreme Liberty Life Insurance Company, a 
corporation, and Israel Katz, each filed a separate mo­
tion to strike and dismiss (Abst. 18-23). Numerous 
grounds are set forth in said motions in support of the 
attack against said complaint that it is insufficient in 
law and in equity to warrant the issuance of an injunc­
tion, temporary or permanent, against said defendants. 
The specific points of attack against said complaint are 
set out with greater particularity in the argument here­
inafter set forth. It should be pointed out here, how­
ever, that although the motions to dismiss among other 
things charge that the restrictive agreement set forth 
in said complaint is illegal and void and, of no effect for 
various reasons therein set forth, the defendants do not 
argue these particular points; but hereby reserve the 
right to raise and argue all such points and others upon



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the trial on the merits in the court below and upon any 
appeal therefrom. We, therefore, ask this Court to 
limit its decision in this case to the points argued by 
the defendants herein in support of their contention that 
the temporary injunction entered against them July 8, 
1937, was improperly issued and therefore should be 
reversed.

Theory of the Case.

Plaintiffs seek equitable relief by injunction against 
all of the defendants, Hansberry, Burke, Pace, Supreme 
Liberty Life Insurance Company and Katz, by virtue 
of the restrictive agreement entered into by and between 
the plaintiffs and one Eva Somerman who executed the 
said agreement along with the plaintiffs, and who at the 
time of execution thereof was owner of the premises 
now owned and occupied by the Hansberrys. They 
contend that as the agreement itself binds the parties 
thereto and their assigns from selling, conveying or 
leasing any part of the premises to Negroes and pro­
hibits the use or occupancy of the premises described 
therein by Negroes, that therefore, Hansberry and wife, 
as Negroes, successors in title to the Somerman property 
aforesaid, cannot legally own or occupy said premises, 
and that therefore they should be enjoined from con­
tinuing to occupy said premises and from collecting the 
rents and issues of the two apartments of said premises 
which are occupied by white tenants. As to the defend­
ant, Burke, plaintiffs contend that he is wilfully and 
maliciously conspiring with Pace and other Negroes to 
place Negroes as tenants or owners of premises within 
the area covered by said restrictive covenant, and that 
although he is not a party to the agreement or owner 
of any of the property covered thereby, he may never­
theless be enjoined from breaking said agreement. And 
as to the defendants Pace and Supreme Liberty Life 
Insurance Company, plaintiffs contend that they and 
each of them are in conspiracy and combination with 
other defendants encouraging the violation of sqid re­



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strictive agreement by making loans for the purchase by 
Negroes of other property within said restricted area, 
and that they may be enjoined from violating the agree­
ment, though not in privity of contract with the parties 
thereto.

As to the defendant Katz, plaintiffs contend that he 
is one of the signers of said restrictive agreement and 
has threatened to sell or lease the premises which he 
owns and occupies in the area described in the restric­
tive agreement to Negroes, and that as such he may be 
enjoined from selling or leasing his premises to Negroes.

Defendants contend that the complaint fails to state a 
cause of action in equity against the defendants; that 
particularly the Court below had no right on application 
for temporary injunction to enter the finding that the 
defendants, Hansberry and wife, are unlawfully and il­
legally holding the premises which they have purchased 
and now occupy at 6140 Rhodes Avenue, Chicago, and 
further had no right to enter a temporary mandatory 
injunction, directing the defendants Hansberry to vacate 
said premises within ninety days from date of the entry 
of the interlocutory order from which this appeal is now 
prosecuted; that in granting the interlocutory injunction 
so directing the Hansberrys to vacate said premises, the 
Court committed error in that the result of said injunc­
tion was to change the status quo of the parties rather 
than to maintain it.

It is further contended that the Court below should 
not have entertained jurisdiction of the issues involved 
in this suit, on the ground that a prior action is pending 
between the same parties involving the same issues in 
the Superior Court of Cook County, and that according 
to the terms of the restrictive agreement which is the 
basis of the complaint, the plaintiffs, having elected to 
proceed at law in the Superior Court of Cook County, 
should not now be permitted to seek equitable relief in 
the Circuit Court, a court of concurrent jurisdiction.



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Defendants further contend that since there is no 
privity of contract between the plaintiffs and defendants, 
Burke, Pace and Supreme Liberty Life Insurance Com­
pany, plaintiffs cannot maintain this action in equity 
against them, predicated upon the said agreement; that 
if plaintiffs have any right of action against said de­
fendants it is a tort action for damages, which action is 
not properly set forth in the instant complaint.

Errors Relied Upon for Reversal.

1. It was error of the Circuit Court to entertain juris­
diction of this suit in equity because a prior action is 
pending between the same parties involving the same 
issues in the Superior Court of Cook County, a court of 
concurrent jurisdiction.

2. The Circuit Court erred in taking jurisdiction be­
cause according to the restrictive agreement which is 
the basis of the complaint, the plaintiffs had elected to 
proceed at law by filing Case No. 37S 7357 in the Superior 
Court of Cook County, wherein could have been obtained 
all the relief now prayed for in this suit.

3. The Circuit Court erred in entering an interlocu­
tory order of injunction against the defendants, Carl A. 
Hansberry and Nannie L. Hansberry, and a mandatory 
injunction against said defendants directing them to 
vacate said premises at 6140 Rhodes Avenue, Chicago, 
within ninety days from the date of said interlocutory 
order.

4. The Circuit Court erred in entering the interlocu­
tory order enjoining the defendants, Burke, Pace, Su­
preme Liberty Life Insurance Company, Israel Katz, 
and each of them, in the manner as set forth in inter­
locutory order of July 8, 1937.

5. It was error of the Circuit Court to enter an in­
terlocutory order of injunction finding that the defend­
ants, Carl A. Hansberry and Nannie L. Hansberry are 
unlawfully entitled to possession and occupancy of the



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premises known as 6140 Rhodes Avenue, Chicago, Illi­
nois, and in violation of the restrictive agreement re­
corded February 1, 1928, as set forth in said complaint.

6. The Circuit Court erred in issuing the temporary 
injunction against the defendants, Carl A. Hansberry 
and Nannie L. Hansberry which afforded affirmative 
relief since such a writ should be granted only to main­
tain the status quo.

7. It was error of the Circuit Court to enter the 
interlocutory order of July 8, 1937, because the complaint 
upon which the interlocutory order was based fails to 
state a cause of action in equity against the defendants 
and each of them.



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POINTS AND AUTHORITIES.

I.

The complaint fails to state a cause of action in equity 
against the defendants.

(a) Restrictive covenants as to real estate shall be strictly 
construed and all doubts are to be resolved in favor of the free 
use and enjoyment of property.

Labadie v. Morris, 303 111. 321.
Eckhart v. Iron, 128 111. 568.
Hutchinson v. Ulrich, 145 111. 336.

(b) The complaint fails to set out the written instrument 
on which it is founded.

Sec. 36, Civil Practice Act.

(c) The allegations in the complaint that five hundred or 
more white persons signed the agreement should be disregarded 
in determining the legal sufficiency of the complaint.

Bunker Hill Country Club v. McElhatton, 282
111. A pp. 236.

Lyons v. 333 N. Michigan Avenue Bldg. Corp., 
277 111. A pp. 93.

(d) The complaint fails to show that the restrictive agree­
ment ever became effective in that there is no allegation that 
the owners of ninety-five per cent of the frontage of the 
alleged restricted area ever executed it as required by the 
language of the covenant itself.

(See Argument.)



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(e) The complaint fails to show that the covenant as be­
tween the parties was ever delivered or that the alleged par­
ties to it ever covenanted with the defendants against the sale 
or leasing of said premises to Negroes.

15 C. J. p. 1302, Sec. 190, n. 54. 
idem, Sec. 22, p. 1193, n. 89.
Walker v. Kessner, 86 111. App. 244.
Everett v. Sexton & Co., 280 111. App. 330 at p. 

360.

(f) The complaint fails to allege fraud or conspiracy or 
both on the part of the defendants acting individually or with 
others against the plaintiffs and each of them.

Murphy v. Murphy, 189 111. 360.
Haenni v. Bleisclv, 146 111. 262.
9 Encyc. of PI. and Pr. 686, 687.
Brooks v. O’Hara Bros., 8 Fed. 529.
Jones v. Albee, 70 111. 34.
Felt v. U. S. Mortgage and Trust Co., 231 111. 

App. 110.
Simpson v. Simpson, 273 111. 90.
Congress Hotel Co. v. Southgage, 209 111. App. 

442.
Weber v. Rupp, 235 111. App. 132.
Mitf. Ch. PL (4th Amer. Ed.), p. 71.
Boose v. Boose, 300 111. 134.
Connecting Ry. Co. v. People, 119 111. 182. 
Sterling Gas Co. v. Higby, 134 111. 568.
People v. Henry, 236 111. 124.

1. If fraud and conspiracy are alleged, the acts 
complained of have been terminated and temporary 
injunction will not lie to enjoin them. The purpose 
of the temporary injunction is to maintain the status 
quo of the parties until hearing on the merits.

Peoples Gas Light & Coke Co. v. Cook Lumber 
Terminal Co., 256 111. App. 357.



14

2. Such allegations do not meet the requirements 
of the statute.

See. 33, Civil Pract. Act.

(g) The complaint fails to show that the restrictive agree­
ment has been broken or violated by the defendants.

(h) The complaint fails to show privity between the par­
ties plaintiff and the defendants, Burke, Pace and Supreme 
Liberty Life Insurance Company, or any or either of them.

15 C. J. p. 1193, Sec. 20, n. 77.
Webster v. Fleming, 73 111. App. 234.
Anson Contracts (Corbins Ed. 1919) Sec. 284. 
Pound, The Spirit of the Common Law (1921), 

Ch. I.
American Law Review, pp. 1281, 1306-1324. 
Clark, Real Covenants Running with the Land 

(1929).
American Unitarian Assoc, v. Minot, 185 Mass. 

589.

(i) The allegations in the complaint are inconsistent, uncer­
tain, vague, general, irrelevant, immaterial, multifarious, and 
abound in conclusions which fail to state triable issues.

Peoples Gas■ Light & Coke Co. v. Cook Lumber 
Terminal Co., 256 111. App. 357.

II.

The complaint is insufficient and defective because:

(a) It fails to join as parties plaintiff 500 alleged owners 
of certain parcels of real estate referred to in the complaint.

Whitney v. Mayo, 15 111. 251 at 255.
Nolan v. Barnes, 268 111. 515 at 523.
Riley v. Webb, 272 111. 537 at 540:
Central Cotton Garment Manufactures A ss ’n 

v. International Ladies’ Garment Workers 
Union, 280 111., App. 168.



15

Merchants Building Improvement Company v. 
Chicago Exchange Building Company, 108 111. 
54.

(b) Because it fails to join the First National Bank of 
Englewood as a party plaintiff in the complaint which seeks 
to set aside a deed for alleged fraud.

Riley v. Webb, 272 111. 537, 538, 539.
Cowles v. Morris & Company, 330 111. 12.
Hale v. Hale, 146 111. 227 at 256, 257.
Nolan v. Barnes, 268 111. 515.

(c) Because it fails to join as a necessary party defend­
ant, Eva Somerman, who is alleged to have signed the 
covenant.

Nolan v. Barnes, 268 111. 515.
Whitney v. Mayo, 15 111. 251.
Cowles v. Morris & Company, 330 111. 12.

(d) The complaint is defective and insufficient because the 
proper and sufficient allegations have not been set forth to 
make the suit a representative action.

Hale v. Hale, 146 111. 227 at 256, 257.
Weberpals v. Jenny, 300 111. 145.
Whitney v. Mayo, 15 111. 251 at 255.
21 Corpus Juris pp. 286, 287.

III.

A temporary mandatory injunction should not lie where 
it disturbs the status quo of the parties to the action.

City of Chicago v. Peoples Gas Light & Coke 
Co., 170 111. App. at 109.

Hunt v. Sain, 181 111. 372, 378.
Paxton v. Favry, 200 111. App. 104.
Bobrinsky v. Boylan, 222 111. App. 494.
Cleaning & Dyeing Plant Owners v. Sterling 

Cleaners & Dyers Corp., Inc., 278 111. App. 77. 
Menard v. Wood, 68 111. 121.
Baxter v. Board of Trade, 83 111. 146.



1 6

IV.

As to the defendants, Burke, Supreme Liberty Life Insur­
ance Company, and Pace, the complaint fails to show 
any legal basis for equitable relief because:

(a) The complaint does not show these defendants to be 
under any obligation not to violate the alleged agreement;

(b) As to defendants, Supreme Liberty Life Insurance Com­
pany, and Pace, the complaint asks relief against acts mani­
festly permitted by the terms of the alleged restrictive agree­
ment.

New York Phonograph Company v. Davega, 
127 App. Div. 222, 111 N. Y. S. 363.

32 Corpus Juris, p. 203, Sec. 315; Sec. 210, p. 
326.

21 Corpus Juris, p. 396, Sec. 412.
Congress Hotel Co. v. Southgate, 209 111. App. 

442.

V.

The Chancellor erred in issuing a temporary injunction 
against the defendants when it did not positively and 
clearly appear from the complaint that there was any 
substantial and palpable violation of any rights of the 
plaintiff, and where the complaint also failed to show 
that the plaintiff would suffer an irreparable injury 
in consequence of any threatened acts of the defend­
ants.

Allott v. American Strawhoard Co., 237 111. 55 
at 62.

Washingtonian Home v. Chicago, 281 111. 110. 
Wilson-Broadway Bldg., Corp. v. Northwestern 

Elevated Car Company, 225 111. App. 306. 
Central Cotton Garment Manufacturers A ss’n 

v. International Ladies’ Garment Union, 280
111. App. 168.

Spiller v. Ensign, 205 111. App. 154.
Labadie v. Morris, 303 111. 321.



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VI.

The court should not entertain jurisdiction on the issues 
involved herein because:

(a) A prior action is pending between the same parties in­
volving the same issues, in the Superior Court of Cook County.

(b) Under the alleged restrictive agreement it is pro­
vided that the plaintiffs may file any legal or equitable pro­
ceedings. Having elected to proceed at law by filing Case 
No. 37 S-7357 in the Superior Court of Cook County, they 
should not be permitted to receive equitable relief in the 
Circuit Court.

Newman v. Commercial National Bank, 156 111. 
530.

Nolan v. Barnes, 268 111. 520, 521.

VII.

The Court had no jurisdiction to direct the issuance of a 
writ of assistance against the defendants, Hansberry, 
before the entry of a final decree.

Stubbs v. Austin, 285 111. App. 535.
Flowers v. Brown, 21 111. 271.
McDonnell v. Hartnett 323 111. 87.
Kerr v. Brawley, 193 111. 205.

VIII.

The Court lacked jurisdiction to make a finding that the 
defendants, Hansberry, were unlawfully in title before 
said case was at issue and before a trial on the merits 
thereof.

21 Corpus Juris, page 578 Sec. 709.
Blair v. Reading, 99 111. 600.

IX.

The Chancellor erred in enjoining defendants, Hansberry, 
from collecting rents from tenants in possession of 
premises owned by said Hansberry.

Ball v. Chadwick, 46 111. 28 at 29.



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ARGUMENT.

The Facts.

Plaintiffs are the owners of certain real estate in an 
area in the City of Chicago, known as the Washington 
Park Subdivision. The complaint charges that more 
than 500 white property owners, including the plaintiffs, 
in the area entered into a restrictive agreement in the 
year 1928 not to convey any of the parcels of property 
owned by them to Negroes or to permit the occupancy 
of any of said property to Negroes, except as chauf­
feurs, servants, etc. (Abst. 3).

The defendants, Carl A. Hansberry (sued as Paul A. 
Hansberry) and Nannie L. Hansberry, his wife, pur­
chased a three-story residence known as 6140 Rhodes 
Avenue and located in said alleged restricted area, from 
one Jay B. Crook, a white man, and they noAv occupy 
the first apartment and basement of said premises. The 
defendant, Jay B. Crook purchased this same property 
from The First National Bank of Englewood, a corpo­
ration. The complaint alleges that in 1928 this same 
property was owned by one Eva Somerman who was 
one of the original covenantors to the aforesaid restric­
tive agreement (Abst. 9), and that by sundry convey­
ances the fee simple title to it was held by said First 
National Bank immediately prior to its conveyance there­
of to Crook.

The defendant, James Joseph Burke, is a real estate 
broker but not a party to the alleged agreement, nor the 
owner of any property within the alleged restrictive 
agreement. He acted as the broker in the sale of the 
aforesaid premises from The First National Bank to 
Jay B. Crook.

The defendant, Harry H. Pace, is the President of 
the Supreme Liberty Life Insurance Company, a cor­



19

poration, though erroneously designated in the complaint 
as the Negro secretary of said corporation. The com­
plaint charges him with having caused said insurance 
company to make a first mortgage of $4,400 on said 
property to Jay B. Crook (Abst. 10). Said Pace is not 
a party to the alleged agreement but is sued here solely 
in his capacity as an officer of the said insurance com­
pany.

The defendant, Supreme Liberty Life Insurance Com­
pany, is a life insurance company organized under the 
laws of Illinois. As such corporation it made a first 
mortgage loan of $4,400 on the aforesaid property to said 
Jay B. Crook, prior to the purchase of said property 
and its occupancy by the defendants, Hansberry. This 
company is not a party to the alleged agreement.

The defendant, Katz, is the owner of premises within 
the alleged restricted area and was one of the original 
covenanters to the alleged agreement. The complaint 
charges him with having threatened to sell his premises 
to Negroes and with having placed it for sale with the 
defendant, Burke.

I.

The complaint fails to state a cause of action in equity 
against the defendants.

In order to determine whether the complaint herein 
states a cause of action, we must analyze the allegations 
set forth therein in relation to the covenant upon which 
plaintiffs seek relief. I f these plaintiffs are to get any 
relief at all against the defendants they must get it by 
reason of the covenant which was entered into by and 
between certain parties. But for that particular cove­
nant they could get absolutely no relief whatever. In 
determining the legal sufficiency of the complaint, one 
cardinal principle of construction should be kept in mind,



20

that restrictive covenants as to real estate, shall be 
strictly construed and all doubts are to be resolved in 
favor of the free use and enjoyment of the property. 
(Labadie v. Morris, 303 111. 321; Eckhart v. Irons, 128 
111. 568; Hutchinson v. Ulrich, 145 111. 356.)

The complaint fails to set out the written instruments 
on which it is founded.

Plaintiffs predicate their cause of action for equitable 
relief upon restrictive covenants, concurrent and coun­
terpart agreements, purported to be signed by more 
than 500 owners (Abst. 1). The complaint fails to set 
out in particularity in the restrictive agreement and the 
concurrent and counterparts, the names of the persons 
who executed the same, and in that failure it violates 
Section 36 of the Illinois Civil Practice Act which is to 
this effect:

“ Whenever an action, defense or counterclaim is 
founded upon a written instrument, a copy thereof, 
or of so much of the same as is relevant, must be 
attached to the pleadings as an exhibit or recited 
therein, unless the pleader shall attach to his plead­
ing an affidavit stating facts showing that such in­
strument is not accessible to him. In pleading any 
written instrument a copy thereof may be attached 
to the pleading as an exhibit. * * * ’ ’

Reference to the complaint will show that plaintiffs 
undertake to set out a copy of the restrictive agreement 
but they leave the names of the persons wdio signed the 
agreement out of the complaint, although according to 
the terms of the agreement itself, it shall not become 
effective until the owners of ninety-five per cent of the 
frontage described therein have signed it. A  copy of 
the document relied upon within the meaning of Section 
36 aforesaid, would undoubtedly include the names of 
the owners who signed the original instrument.

What is a copy within the meaning of the Civil Prac­
tice Act? Does it not mean that the relevant parts of



21

an instrument relied upon must be contained in the 
copy thereof? If so, are not the names of the persons 
who gave legal life to the original instrument an essential 
and relevant part of the original instrument, and being 
so, should they not be included in the copy set forth 
in the complaint herein? There can be only one an­
swer to this question: the alleged restrictive agreement 
without the names of the persons who executed it, is a 
mere scrap of paper—just the same as if it contained 
no writing thereon whatsoever; legal life Avas breathed 
into it, if at all, when the owners of ninety-five per cent 
of the frontage desci’ibed therein signed it; there can 
therefore be a copy only if and when the names of the 
owners of ninety-five per cent of the frontage therein 
described are affixed to and made a part of it. According 
to Webster’s New Inteimational Dictionary “ copy”  is 
defined as “ a reproduction of an original work.”  This 
definition fortifies the contention now made that a copy 
of the alleged agreement must be a reproduction of the 
original and that since the original instrument must 
contain the names of the signers thereof, a reproduction 
thereof must also include said names.

Furthermore, if you will examine not only the alle­
gations in the complaint, but the language of the cove­
nant itself, it will be seen that the plaiixtiffs rely not 
only on the so-called original covenant but on counter­
part covenants. Notwithstanding this fact, they do not 
attempt even remotely to set up in the complaint the 
concurrent and counterpart covenants; and we say that 
failure so to do is in violation of Section 36 of the Illi­
nois Civil Practice Act aforesaid.

The allegation in the complaint that 500 or more white 
persons signed the agreement should be disregarded in 
determining the legal sufficiency of the complaint.

The law in this state is clear that where there is a 
discrepancy between allegations in the complaint and 
facts as shoAvn in the exhibit attached to and made a



22

part of the complaint, the exhibit will control and a 
motion to strike the complaint does not admit such alle­
gations as are in conflict with facts disclosed in the ex­
hibit. (Bunker Hill Country Club v. McElhatton, 282 
111. App. 236; Lyons v. 333 North Michigan Avenue Build­
ing Corporation, 277 111. App. 93.)

It was stated a moment ago that this alleged covenant 
without any signatures attached thereto is not a copy 
within the meaning of the Civil Practice Act. It follows 
that motions to dismiss would admit only that there was 
a paper containing the language of the alleged restrictive 
agreement without signatures; it would not admit the 
signatures alleged to have been attached to the original 
instrument. Now we say that the instrument relied upon, 
namely, the alleged restrictive agreement, is at variance 
with previous allegations in the complaint which aver 
that 500 or more people signed the instrument (Abst. 
1). There is a variance because when you look at the 
instrument—the alleged copy of the restrictive agree­
ment—you do not see any 500 or more signatures at­
tached thereto. Since the motions to dismiss as filed by 
the defendants admit the facts set up in the exhibit, and 
do not admit facts alleged in the complaint which are 
at variance with the exhibit, the allegations made in the 
complaint that 500 or more signed the original instru­
ment should be disregarded altogether under the au­
thority of the Bunker THU Country Club case, supra. If 
this is true, it follows beyond any doubt whatsoever that 
the complaint does not state a cause of action, for cer­
tainly there could be no restrictive agreement which 
would give plaintiffs the basis for equitable relief unless 
said agreement was in fact executed and the complaint 
properly alleged its execution.



23

The complaint fails to show that the restrictive agree­
ment ever became effective in that there is no allegation 
that the owners of ninety-five per cent of the frontage 
of the alleged restricted area ever executed it, as required 
by the language of the covenant itself.

The complaint says that ninety-five per cent of the 
owners of the frontage executed the agreement, although 
the covenant itself says it shall not become effective until 
the owners of ninety-five per cent of the frontage of the 
restricted area execute it (Abst. 8 ). There is a differ­
ence between ninety-five per cent of the owners of the 
frontage and the owners of ninety-five per cent of the 
frontage. You might have ninety-five per cent of the 
owners who might not constitute ninety-five per cent 
of the frontage, or nearly as much of said frontage, 
and in that case, of course, the covenant by its own 
language could never become effective. We challenge 
the plaintiffs to show that there is any allegation in the 
complaint alleging that the condition precedent to the 
effective validity of the restrictive covenant itself was 
ever complied with. There could be no legal existence 
of the agreement, which is the gist of the plaintiffs’ ac­
tion, until there had been compliance with that require­
ment.

The complaint fails to show that the covenant as be­
tween the parties was ever delivered.

Although it is alleged that the covenant was signed, 
scaled and acknowledged by 500 or more persons, there 
is no allegation that as between the parties it was over 
delivered; and it has already been pointed out herein­
above that the allegation as to execution being at vari­
ance with the exhibit set forth in the complaint, should 
be disregarded and considered as being not set out in 
the complaint at. all. Without the allegation of execu­
tion and the further allegation of delivery, the complaint 
falls short of stating a valid cause of action. See 15



24

Corpus Juris, page 1302, Section 190, n. 54, to this ef­
fect :

“ The covenant sued on must be alleged including 
the execution of it and delivery.”

Moreover, there is no allegation in the complaint 
which states that 500 or more white persons who signed, 
sealed and acknowledged said covenant, covenanted with 
each other or with any other persons, including the de­
fendants, that they would not convey or lease their prem­
ises to Negroes. In support of the proposition that the 
complaint is bad for failure so to show with whom the 
parties covenanted, see 15 Corpus Juris, Section 22, 
page 1193, n. 89; Walker v. Gessner, 86 111. App. 244, 
and Everett v. Sexton & Co., 280 111. App. 350 at page 
360.

The complaint fails to allege facts constituting fraud 
or conspiracy or both, on the part of the defendants act­
ing individually or with others against the plaintiffs and 
each of them.

There are several allegations in the complaint alleg­
ing fraud and conspiracy as conclusions but not setting 
forth facts constituting said fraud and conspiracy.

First it is alleged that the defendant James Joseph 
Burke, acting on behalf of the defendants Paul A. Hans- 
berry, a Negro, and Harry H. Pace, a Negro attorney 
and secretary of the Supreme Liberty Life Insurance 
Company, a corporation, fraudulently, knowingly, and 
deceitfully represented to said First National Bank of 
Englewood, or its officers, that said premises would 
not be sold to a Negro or Negroes, and by such fraud, 
deceit and misrepresentations induced the officers of 
said First National Bank of Englewood, a corporation, 
to execute a conveyance of said premises to the defend­
ant Jay B. Crook, a white person, which conveyance was 
made by quitclaim deed from the said First National 
Bank of Englewood under the belief and with the dis-



25

tinet understanding that said sale was not to be to a 
Negro; that in fact the said Jay B. Crook was then in 
unlawful conspiracy and combination to violate said 
restrictive agreement with the defendant Harry H. Pace, 
a Negro, the secretary of the defendant Supreme Liberty 
Life Insurance Company and to procure a loan on said 
premises from said Supreme Liberty Life Insurance 
Company; that the deed from the bank to Crook was 
not delivered to Crook until May 26, 1937; but that 
on May 19, 1937, Crook with his wife executed and 
delivered a trust deed to the Chicago Title & Trust 
Company as trustee on said premises commonly known 
as 6140 Rhodes Avenue, Chicago, Illinois, to secure their 
note for Four Thousand Four Hundred Dollars ($4 ,- 
400.00) payable to the defendant Supreme Liberty Life 
Insurance Company; that said trust deed and quitclaim 
deed from said bank to said Crook were recorded simul­
taneously ; that in furtherance of said conspiracy and 
combination, the said defendant Carl A. Hansberry with 
his family moved into and took possession of the first 
apartment and basement of said 6140 Rhodes on May 
26, 1937; that by quitclaim deed dated May 27, 1937, 
said Jay B. Crook and wife, conveyed said premises to 
Carl A. Hansberry and Nannie L. Hansberry, his wife, 
which deed was recorded the same date, May 27, 1937; 
that said defendant Hansberry, a Negro, and other 
Negroes are now in possession and occupying said prem­
ises.

Do these allegations set forth fraud and conspiracy? 
We say they do not, but they are mere conclusions. The 
law is clear that ‘ an allegation of conspiracy, collusion, 
and fraud, must show the facts upon which it is based— 
the words themselves unsupported by facts, are mere 
vituperation.”

Murphy v. Murphy, 189 111. 360.
Haenni v. Bleisch, 146 111. 262.
9 Encyc. of PI. and Pr. 686, 687.
Brooks v. O’Hara Bros., 8 Fed. 529.



2 6

Jones v. Albee, 70 111. 34.
Felt v. U. S. Mortgage and Trust Co., 231 111.

A pp. 110.
Simpson v. Simpson, 273 111. 90.
Congress Hotel Co. v. Southgage, 209 111. App.

442.
Weber v. Rupp, 235 111. App. 132.
Mitf. Ch. PL (4th Amer. Ed.), p. 71.
Boose v. Boose, 300 111. 134.
Connecting Ry. Co. v. People, 119 111. 182.
Sterling Gas Co. v. Higby, 134 111. 568.
People v. Henry, 236 111. 124.

As to the allegation that Jay B. Crook and wife, 
executed a trust deed to Chicago Title and Trust Com­
pany payable to Supreme Liberty Life Insurance Com­
pany, plainly this allegation can not be a part of the 
fraud or conspiracy; for according to the terms of the 
restrictive agreement itself, among other things it is 
provided that “ the lien of no mortgage or trust deed 
in the nature of a mortgage shall he impaired or in­
validated by reason of a breach of any of the provisions 
of this agreement, whether any such breach shall have 
occurred prior or subsequent to the recording of any 
such mortgage or trust deed.”

As stated hereinabove, restrictive covenants as to 
real estate should be strictly construed and all doubts 
are to he resolved in favor of the free use and enjoy­
ment of the property. (Labadie v. Morris, 303 111. 321.) 
I f the covenant states, as does this covenant which is 
the basis of plaintiffs’ action, that no lien or mortgage 
shall be impaired by reason of a breach of any of the 
provisions of the covenant, how could it possibly be 
that the making of a mortgage lien on any of the prem­
ises included in the restricted area would constitute a 
scheme or plan of conspiracy, as inaptly charged by the 
plaintiffs ?



27

The next charge as to fraud and conspiracy is in 
this language— “ that the defendants Carl A. Hansberry, 
Harry H. Pace, James Joseph Burke and Jay B. Crook, 
each and all had actual knowledge of the existence and 
validity of said restrictive agreement and the provisions 
thereof; that said James Joseph Burke resigned as execu­
tive secretary of said Woodlawn Property Owners’ Asso­
ciation on March 1, 1937, and since that date, wilfully, 
maliciously has been conspiring with the defendants, 
Carl A. Hansberry, Harry H. Pace and other Negroes 
to place Negroes either as tenants or owners into pos­
session of real estate in said restricted area”  (Abst. 
12).

Do these allegations meet the requirements of the 
law as set forth in the cases cited immediately herein­
above? They, like the other allegations referred to 
above, abound in conclusions—they state no facts upon 
which the alleged conspiracy and fraud are based and 
are mere vituperation.

The next allegation as to fraud and conspiracy is to 
this effect— “ that the defendant Harry H. Pace as 
secretary of the defendant Supreme Liberty Life In­
surance Company, in conspiracy and combination with 
other defendants, is encouraging the violation of said 
restrictive agreement by making loans to Negroes for 
the purpose of acquiring real estate within said re­
stricted area; that said Pace is the active executive of 
said Supreme Liberty Life Insurance Company, a cor­
poration, and as such executive has caused said insur­
ance company to make an excessive loan on the prem­
ises now occupied by said Pace as hereinbefore set 
forth on 413 East 60th Street and on the premises now 
owned by said Hansberry at 6140 Rhodes Avenue, Chi­
cago, Hlinois.”

These allegations are just as fatally defective in their 
effort to state fraud and conspiracy as are the others 
heretofore mentioned. What is the conspiracy and



2 8

combination of which Pace is charged along with the 
other defendants? Judging from the context of the al­
legation, the conspiracy is that Pace is in combination 
and conspiracy with the defendant Supreme Liberty 
Life Insurance Company to make mortgage loans to 
Negroes on premises within the restricted area. As 
argued above, the restrictive agreement excepts mort­
gage liens from liability on account of breach of the 
terms of the said agreement; therefore it is difficult to see 
how the making of mortgage loans, whether through 
the instrumentality of Pace as officer of Supreme Liberty 
Life Insurance Company, or by the company itself with­
out any action on Pace’s part, could be a part o f the 
alleged conspiracy or combination. Moreover, there 
is nowhere in the complaint any proper allegation that 
the defendants Carl A. Hansberry and Harry H. Pace 
perpetrated fraud upon the officers of the First National 
Bank of Englewood so as to induce them to convey the 
premises now owned by Hansberry to the defendant Jay 
B. Crook. If fraud and conspiracy imposed on the 
Englewood National Bank (Abst. 10) brought about 
the conveyance to the defendant, Hansberry, in the 
first place, for such a charge to be binding upon the 
defendants, Hansberry, Pace and Supreme Liberty Life 
Insurance Company, it would have to include the aver­
ment that when the defendant, Burke, perpetrated the 
fraud, he did so with the knowledge of the defendants, 
Hansberry, Pace and Supreme Liberty Life Insurance 
Company, and was acting within the scope of authority 
vested in him by said last mentioned defendants. Sec­
ondly, if anybody in the world is hurt by this alleged 
fraud, it is the Englewood National Bank, not a party 
to the suit, and the allegations are as silent as a tomb 
on the question of damages caused to said bank on ac­
count of said fraud. Plaintiffs get their rights against 
the defendants, if such rights they have at all, from 
the covenant upon which they rely (Abst. 2-8); not 
from acts of fraud and conspiracy already finished. 
How could such fraud and conspiracy, then, as alleged,



29

be the basis for equitable relief by temporary injunc­
tion ?

And, too, the fraud and conspiracy as alleged, include 
as chief conspirators the defendant, Pace, sued in the 
capacity of Negro secretary of Supreme Liberty Life 
Insurance Company, and said Supreme Liberty Life 
Insurance Company, a corporation: Pace is charged 
with causing and inducing Supreme Liberty Life In­
surance Company to make a loan to the defendant, 
Crook, a white person, who in turn is charged with 
purchasing certain property to enable the defendants, 
Hansberry and wife, colored persons, to obtain title to 
and occupancy of said premises (Abst. 15); and the 
insurance company itself is charged with making the 
mortgage loan on said premises for such purpose. Aside 
from other serious defects, these charges are fatally 
deficient for the simple reason that the covenant which 
is the prayer book for relief sought by plaintiffs, ex­
pressly exempts the making of mortgage loans from 
any liability (Abst. 4) if the validity of a mortgage 
lien, whether made before or after a breach of the 
covenant, is not affected by such a breach. How can 
the act of making the mortgage loan creating such lien 
be considered and labeled a step in the alleged dastardly 
conspiracy and combination? Furthermore, if Pace and 
the Supreme Liberty Life Insurance Company are not 
properly charged with committing fraud upon the First 
National Bank of Englewood so as to induce it to con­
vey title to Crook, wherein is the unlawful conspiracy 
and combination on the part of Pace and the insurance 
company to violate the restrictive agreement?

Nor do the allegations last above quoted state facts 
showing that the defendants Harry H. Pace, and the 
Supreme Liberty Life Insurance Company, are in con­
spiracy and combination with other defendants in en- 
coui aging the violation of said restrictive agreement. 
Is not the word “ encouraging”  a conclusion? What 
does it mean? Does it mean “ inducing”  the violation



30

of the restrictive agreement? Its ordinary meaning 
could not be said to include “ inducing,”  and as the rule 
of pleading is that allegations in a pleading must be 
taken most strongly against the pleader, it would be an 
unfair use of the word “ encouraging”  to make it mean 
“ inducing.”

Again, even if it might be interpreted to mean “ in­
ducing,”  the allegation is fatally defective in that it 
fails to set forth a concise and plain statement of the 
charge within the meaning of Section 33 of the Illinois 
Civil Practice Act. If these defendants are inducing 
the violation of the restrictive agreement, the plaintiffs 
should know the individuals who are thus being induced 
or encouraged and they should set out their names with 
particularity so as to enable the defendants to join 
issue on the charge so made. If the defendant Harry H. 
Pace, and the insurance company are making loans to 
Negroes, are not mortgage loans matters of record, 
and being so, can they not be set out with particularity? 
The truth of the matter is, the charges of conspiracy 
and combination against not only the defendants Pace 
and the Supreme Liberty Life Insurance Company, but 
against defendants Burke and Crook relate only to two 
transactions involving the purchase of the premises 
within the restricted area, now owned and occupied by 
Pace and Hansberry. As stated above, no allegations 
of conspiracy, fraud, and combination have been suffi­
ciently alleged in the complaint but even if such allega­
tions had been alleged, they relate only to an alleged 
conspiracy which is now finished and terminated. How 
could these allegations be the basis for injunctive relief 
against the defendants? The sale of the premises to 
Hansberry and the making of the first mortgage loan 
to Crook on his behalf are a fait accompli. They can­
not therefore be terminated or arrested by the issuance 
of a temporary injunction; for it is elementary that 
the purpose of a temporary injunction is to maintain the



31

status quo of the parties until there has been a hearing 
on the merits.

Since there is no privity between plaintiffs and de­
fendants, Pace, Burke and Supreme Liberty Life In­
surance Company, and since plaintiffs do not seek to 
have any alleged interest in land created by breach of 
the covenant as to them, declared terminated, the only 
theory upon which, if at all, the relief prayed for against 
these defendants, may be obtained is that they have 
entered into a fraudulent conspiracy and combination 
to induce the breach of the alleged covenant and that 
said conspiracy and combination is a continuing one.

Now, what facts are there alleged in the complaint 
to support this theory? At best, as stated above, the 
allegations of fraud amount only to conclusions of the 
pleader and therefore cannot on this appeal be con­
sidered as admitted. Besides, even these conclusions do 
not undertake to charge the defendants with fraud or 
conspiracy to induce a breach of the so-called covenant, 
nor even with continuing to induce such a breach. Any 
plan or scheme which is the product of fraud and con­
spiracy or combination, to induce a breach of the cove­
nant in this case, would have to include the designation 
of some person or persons who either signed the original 
covenant or who are grantees of such person or persons; 
for certainly it is inconceivable that defendants, Pace, 
Burke and Supreme Liberty Life Insurance Company, 
not covenantors or in privity with them, could among 
themselves alone, breach the contract or induce a breach 
of it: so long as the original covenantors and their 
grantees stand pat, any scheme or fraud brought on the 
part of these defendants would be as barren of accom­
plishment as the Sahara Desert is barren of vegeta­
tion—therefore the essential life-blood of an allegation 
of fraud and conspiracy against the defendants, Pace, 
Burke and Supreme Liberty Life Insurance Company 
is missing. We repeat that the names of the original



32

covenantors or their grantees, upon whom the fraud 
and conspiracy are being and are threatening to be 
perpetrated, must be embraced within the veins and 
corpuscles giving legal life to the charge of fraud. With­
out such an allegation showing a continuing or moving 
plan or scheme to breach or induce the breach of the 
covenant, the relief granted plaintiffs herein by temp­
orary injunction has no support in law or in equity.

Nor is there any allegation in the complaint showing 
that the defendant Israel Katz has committed fraud or 
conspiracy in connection with the restrictive agreement 
herein. The allegation as to Katz is—“ that the defend­
ant Katz is the owner of the building commonly known 
as 6018 Vernon Avenue; that said Katz executed said 
restrictive agreement, and that the said Katz on the 
27th day of May, threatened to sell said building to 
Negroes and has placed the sale of said premises with 
said defendant James Joseph Burke.”

Do these allegations state facts showing fraud or 
conspiracy on the part of Katz? The word “ thi’eatened”  
is a conclusion. It makes no charge against Katz which 
would justify an issuance of an injunction against him. 
To whom Katz threatened to sell his property, when 
he made the threat, and under what circumstances— 
all these things which should be known by the plaintiffs, 
if the charge is true, are omitted. No overt act is stated 
against Katz—at best it is only a charge indicating 
a state of mind perhaps induced by the silly complaints 
and urgings of the meddlesome plaintiffs.

The complaint fails to show that the restrictive agree­
ment has been broken or violated by the defendant.

Search as one may, there can he found nowhere with­
in the complaint the positive allegation that the alleged 
restrictive agreement has been broken or violated by 
the defendants. As a matter of fact, there could be 
no such averment as to the defendants, Pace, Burke or



33

Supreme Liberty Life Insurance Company, as they are 
not parties to the contract or in privity of estate and 
therefore could not break or violate its terms. We 
think we have sufficiently exploded the attempt of plain­
tiffs to set forth facts alleging fraud and conspiracy 
on the part of the defendants to break the covenant; 
without such facts there is no charge of violation of 
the covenant by the defendants. Therefore, the basis 
for equitable relief falls, and with it falls likewise the 
interlocutory order itself.

It would be quite another and different proposition if 
plaintiffs Avere here seeking damages against the de­
fendants, Burke, Pace and Supreme Liberty Life In­
surance Company in tort for inducing the original 
covenantors or their grantees to break the said agree­
ment, instead of equitable relief by injunction.

The complaint fails to show privity between the parties 
plaintiff and the parties defendant.

None of the defendants in the instant case were parties 
to the original alleged restrictive agreement except the 
defendant Katz, and as to Katz, it has already been 
pointed out that there are no allegations in the complaint 
which set forth a cause of action against him. Inasmuch 
as the theory of the plaintiffs’ case is that the defend­
ants either have broken the alleged agreement or are 
threatening to break it, and that therefore they as par­
ties to the agreement have a right to enjoin alleged 
actions of the defendants which they assert are a viola­
tion of the agreement, the only way it can be sustained 
is by proper allegations shoAving privity betAveen the 
plaintiffs and the defendants charged with violations of 
the alleged covenant. It should be kept in mind that 
plaintiffs did not set forth a cause of action against the 
defendants, Burke, Pace and Supreme Liberty Life In­
surance Company on the theory that they have com­
mitted a tort in inducing the breach of the covenant, 
therefore it must be assumed that plaintiffs seek their



34

relief against all the defendants by virtue of rights 
acquired by them under the alleged covenant, and they 
pursue such rights through the covenant against the 
defendants as alleged violators thereof. Before such 
action may be maintained against the defendants, it is 
elementary that there must be a privity of contract 
between the parties. Privity of contract has been de­
fined as being the connection of interest through the 
contract relation. (Anson, Contracts, Corbins’ Edition 
1919, Section 284.) The idea of privity is but the idea 
which, says Dean Pound of Harvard Law School, is so 
prevalent in our law of necessity of a relation between 
the parties in a suit in order that the plaintiffs may 
recover. (The Spirit of the Common Law, 1921, Chap. 
1.) Since there is no legal connection between the plain­
tiffs and the defendants in relation to the real estate in­
volved—in both the real estate owned by the defendants 
and that owned by the plaintiffs—there could he no cause 
of action by plaintiffs against defendants who were not 
parties to the original agreement affecting such real 
estate and who do not hold title under persons who were 
parties to the original agreement, upon the theory that 
the defendants had violated a duty owed to the plaintiffs 
as set forth in said alleged restrictive agreement.

According to Clark on Real Covenants Running with 
the Land (1929), there are only three theories which 
Courts have adopted to effect the enforcement of cove­
nants running with the land, like the covenant now in­
volved in the instant case (see Restrictive Agreement, 
Abst. 4 ): (1) The restriction is enforced as a contract
concerning lands. Under this theory the agreement is 
considered as touching the land, with privity of estate 
as between the parties; (2) The restriction is considered 
as an easement attached to the land itself and therefore 
binding in the hands of any subsequent owner of said 
land; (3) The covenant creates an obligation which runs 
with the takers of the land with notice of the covenant. 
This is the theory of estoppel. (See American Law 
Review, pp. 128,1, 1306-1324.)



35

Our Courts in Illinois have long since held that “ under 
the common law rule the action of covenants will be only 
between those parties between whom exists a privity 
of contract or estate.”

15 C. J. 1193, Sec. 20, N. 77.
Webster v. Fleming, 73 111. App. 234.

Many other cases of other jurisdictions have held that 
with such restrictions and covenants as are involved in 
the case at bar, which are considered as real covenants, 
there must be privity in the sense of succession to the 
estate of a party to the covenant in order to give plain­
tiffs a cause of action based upon a breach of duty of 
said covenantor. (Highland Real Estate Company v. 
Graves, 130 Ky. 374, 377; Gray v. Blanchard, 2 Pick. 
(Mass.) 284; Tobey v. Moore, 130 Mass. 448; American 
Unitarian Assoc, v. Minot, 185 Mass. 589.)

The facts in the instant cases as stated in the com­
plaint do not even remotely bring the basis of liability 
as to the defendants, Pace, Supreme Liberty Life In­
surance Company and Burke, within any of these the­
ories. We, therefore, ask plaintiffs again to tell us what 
is the theory which they adopt in order to enforce this 
covenant against these defendants who in every sense 
are strangers to it. We await their answer, confident 
that nothing which they may say can destroy the es­
capable conclusion already reached from an analysis 
of their complaint, that they have no theory, and can 
conjure up none, which legally supports their claim to 
equitable relief against these said defendants.

As to the defendants, Hansberry, who are grantees in 
a»chain of title from a grantor who was a party to the 
original agreement and the defendant, Katz, the argu­
ment as to privity does not apply, but it is pointed out 
elsewhere in this brief that the allegations in the com­
plaint fall short of stating a cause of action against 
said defendants to warrant the issuance of the inter­
locutory order of July 8 , 1937, against them.



30

The allegations in the complaint are inconsistent, un­
certain, vague, general, irrelevant, immaterial, multifari­
ous, and abound in conclusions which fail to state triable 
issues.

In the first place the complaint does not describe ac­
curately and legally the restricted area. In Paragraph 
(1) of the complaint (Abst. 1-2) the area covered by 
the alleged restrictive agreement is alleged to be as fol­
lows :

“ More than 500 white persons owners of real 
estate, on the one or other side of Champlain, St. 
Lawrence, Rhodes, Vernon, Eberhart, and South 
Parkway Avenues,
between 60th Street on the North, and first Public 
Alley north of 63rd Street, on the South (except 
area of the Austin Sexton Public School)

and on
60th, 61st, and 62nd Streets between South Park­
way Avenue and alleys immediately west of Cottage 
Grove Avenue; 

and on
both sides of Langley and Evans between 61st Street 
and the first public alley north of 63rd Street.”

On the other hand, in the copy of the restrictive agree­
ment referred to in the complaint, the area described as 
covered by the agreement is as follows:

‘ ‘ Owners of land on the one side or other of Evans, 
Champlain, Vernon, Langley, St. Lawrence, Eber­
hart, and South Parkway,
between 60th and 63rd Streets and on 
60th, 61st, and 62nd Streets between South Park­
way and Cottage Grove.”

So that it appears that a larger and different area is set 
out as the restricted area in the alleged restrictive agree­
ment sued upon than is alleged to be in said Paragraph 
(1 ) of the complaint.

Secondly, in Paragraph (1 ) of the complaint it is al­
leged that the restrictive agreement provides that “ until



37

January 1, 1948, the real estate shall be subject to the 
restrictions.”  While in the alleged restrictive agree­
ment set out in the complaint it is provided that “ the 
restrictions should operate until January 1, 1948 and 
thereafter until this agreement shall be abrogated as 
hereinafter provided. ’ ’

Next, there is a further inconsistency in that the al­
leged restrictive agreement provides that the “ follow­
ing named persons own the respective parcels of land 
in said area set immediately under their names,”  while 
the complaint itself does not set out either the names 
or the parcels owned by them. Nor does the restrictive 
agreement, as argued hereinafter, contain the names 
of the alleged signators to the agreement.

One purpose of good pleading is to set forth such per­
tinent facts as will enable the defendants charged with 
the violation of duty owed the plaintiffs, either to deny or 
to admit the charges alleged. Plaintiffs in this case 
have no rights against the defendants, except as the 
same arise out of the alleged restrictive agreement, and 
this agreement specifically provides that it shall not 
be effective until signed by the owners of ninety-five per 
cent of the frontage described by said agreement. It 
would appear inescapably essential to the sufficiency of 
such pleading, then, that the names of the signators to 
the alleged covenant be set out in the covenant and fail­
ure so to set out these names should vitiate the com­
plaint itself.

Finally, the complaint is uncertain and vague in that 
it fails to describe the frontage of the restricted area. 
The vital force in the alleged agreement comes into 
being, if at all, when the alleged agreement shall be 
signed by the owners of ninety-five per cent of the 
frontage described in the restricted area. It has al­
ready been pointed out in this argument that there is no 
allegation in the complaint directly alleging that the 
covenant has been executed by the owners of ninety-five 
per cent of the frontage and that on that account, the



38

complaint itself fails to state a cause of action. But 
now we point out that the complaint fails in another re­
spect: Unless the total frontage of the restricted area 
is set out, by what means could issue be joined on the 
question whether the owners of ninety-five per cent of 
the total frontage actually executed the covenant? It 
is the burden of the plaintiffs to prove that the covenant 
went into effect according to its terms. That burden 
cannot be sustained unless first it is alleged and proven 
that the total frontage involved in the area is so much 
and thereupon that the owners of ninety-five per cent 
of the total frontage so stated, have executed the agree­
ment as therein provided. In this connection, reference 
to the alleged agreement set forth in the complaint 
(Abst. 5) will show that one basis of arriving at the an­
swer to the question of whether owners of ninety-five per 
cent of the frontage executed the covenant, is that in 
addition to the owners actually executing the covenant, 
frontage of owners under disability such as infancy and 
insanity is to be included as a part of the ninety-five 
per cent stated in said agreement. The complaint is 
defective in this regard then too, in that it fails to set 
forth the names of the owners under disability and the 
amount of the frontage owned by such persons that is 
considered as a part of the ninety-five per cent of front­
age required for the effective validity of the agreement.

Moreover, the complaint is general, uncertain, and 
vague in the further respect that the specific parcels 
owned by each signer of the alleged covenant are not set 
forth. As repeatedly stated above, plaintiffs cannot 
maintain their complaint, and sustain the relief granted 
them under the interlocutory order of July 8 , 1937, unless 
the owners of ninety-five per cent of the frontage de­
scribed in the alleged agreement itself actually executed 
the agreement in the manner as provided therein. This 
alleged agreement purports to carry with it the cove­
nants and restrictions therein so as to make them run 
with all of the land owned by the several parties to the



39

said alleged agreement. By virtue of this fact each 
specific parcel of property owned by the signer of the 
alleged covenant, is infected with the restrictions and 
limitations set forth in said covenant, assuming, of 
course, that the covenant itself became effective. If this 
be true, a very essential segment of the cause of action 
which plaintiffs state that they have against defendants, 
is the setting out of the specific parcels owned by each 
signer of the alleged covenant with the legal descrip­
tion and with the number of feet of frontage contained 
therein. There can be no triable issue made on the 
main question in this case, namely, whether the owners 
of ninety-five per cent of the frontage of the restricted 
area have executed the agreement, unless these matters 
are set out with particularity in the complaint.

We think we have succeeded in convincing this Court 
that for the numerous reasons herein advanced, the 
complaint which is the basis of the interlocutory order 
appealed from, fails to state a cause of action against 
the defendants and each of them, and that therefore the 
interlocutory order itself should be reversed. In de­
termining whether we have so succeeded we invite the 
Court’s attention to the ruling in the case of Peoples Gas 
Light and Coke Company v. Cook Lumber Terminal 
Company, 256 111. App. 357 to this effect:

“ There are well settled rules that a court should 
exercise caution in issuing a preliminary injunction 
(32 Corpus Juris, p. 33); that such an injunction 
will not be issued in a doubtful case, or where its 
effect will be more than the mere maintenance of 
the status quo (C. J., p. 36); that the facts upon 
which a complainant relies for the issuance of a 
preliminary injunction should be stated in the bill 
with particularity (C. J., p. 32.1); that all reason­
able inferences arising from the allegations, indi­
cating that complainant might not be entitled to the 
relief as prayed, should be negatived (C. J., p. 322); 
and that facts, rather than conclusions or opinions 
of the pleader, should be stated (C. J., p. 322).”



40

II.

The complaint is insufficient and defective because:

(a) It fails to join as parties plaintiff 500 alleged owners 
of certain parcels of real estate referred to in the complaint.

All persons having equitable interests or rights in the 
subject matter of the action and in whose favor or 
against whom there might be a recovery, however par­
tial, must be made parties to the action. See Whitney 
v. Mayo, 15 111. 251 at 255; Nolan v. Barnes, 268 111. 515 
at 523; Riley v. Webb, 272 111. 537 at 540; 21 Corpus 
Juris, page 258, Section 253.

The complaint itself refers to more than 500 property 
owners (Abst. 1) and a total number of 550 parcels of 
real estate covered by the alleged restrictive agreement, 
all of which 500 or more property owners allegedly have 
an interest or legal or equitable right in the subject mat­
ter of the cause of action. In order to avoid circuity 
and multiplicity of suits and in order that a binding 
decree may be entered in the cause, it is therefore nec­
essary that all parties in interest, namely, the 500 or 
more property owners referred to in the complaint, be 
present and before the Court either as plaintiffs or as 
defendants since a decree is not effective as to persons 
not joined as plaintiffs or defendants. Unless all of 
the 500 or more alleged property owners are joined in 
this action the Court might well be treated to the spectacle 
of 499 or more complaints or suits to enforce an alleged 
restrictive agreement embodying the same agreement 
and same subject matter involved in the pending action. 
See Merchants’ Building Improvement Co. v. Chicago 
Exchange Building Co., 108 111. App. 54.

The failure of the plaintiffs to join as parties plaintiff 
or parties defendant the 500 or more white owners of 
real estate who allegedly had an interest in the subject 
matter of the cause of action and who were necessary



41

parties in this suit was a fatal defect, and it was there­
fore error for the Chancellor to direct the issuance of 
a temporary injunction against the defendants when 
these necessary parties were not present and before the 
Court. This rule of law is well established and is well 
illustrated by the leading case of Nolan v. Barnes, 268
111. 515 at page 523, where the Supreme Court of Illi­
nois used the following language:

“ It is a familiar rule that in every suit in equity 
all persons having or claiming equitable or legal 
rights in the subject matter should be made parties.
(Moore v. Munn, 69 111. 591; Gerard v. Bates, 124 
id. 150; Prentice v. Kimball, 19 id. 320; Story’s Eq. 
PI. sec. 207.) The objection that any such persons 
are not made parties may be taken at the trial or 
on appeal, for it is the duty of courts to refuse to 
proceed further with a suit of this nature when the 
want of such parties is brought to their attention. 
(Prentice v. Kimball, swpra; Gordon v. Johnson, 186 
111. 18.)”

(b) Because it fails to join the First National Bank of 
Englewood as a party plaintiff in the complaint which seeks 
to set aside a deed for alleged fraud.

The plaintiffs filed a complaint in which they seek to 
set aside a deed given by the First National Bank of 
Englewood to Jay B. Crook because of certain fraudu­
lent and deceitful misrepresentations alleged to have 
been made by the defendants Burke, Hansberry, Crook 
and Pace. However the plaintiffs failed to have the 
First National Bank of Englewood joined as a party 
plaintiff although the First National Bank of Englewood 
is the only party which can complain of any fraud hav­
ing been perpetrated on it by the defendants or any of 
them as claimed by the plaintiffs. The failure of the 
plaintiffs to secure the joinder of the First National 
Bank of Englewood, as a party plaintiff is absolutely 
fatal to the case of the plaintiffs in which they sought 
injunctive relief against the defendants Burke, Pace, 
Hansberry and the Supreme Liberty Life Insurance Com­



42

pany on account of a fraudulent conspiracy alleged to 
have been participated in by Burke, Pace, Hansberry 
and the Supreme Liberty Life Insurance Company. A 
complaint based upon an alleged fraudulent conspiracy 
which states that a party who held the title was fraudu­
lently induced to part with it but which fails to make 
such a person a party plaintiff is fatally defective and 
could not possibly furnish the basis for injunctive re­
lief. When it was pointed out to the Chancellor that 
plaintiffs had failed to join the First National Bank of 
Englewood as a party, it was the duty of the Chancellor 
to refuse to proceed further with a suit of such nature, 
and it was especially the duty of the Chancellor to re­
fuse to issue a temporary injunction against the defend­
ants.

The plaintiffs prayed that the deed from the First 
National Bank of Englewood to Jay B. Crook as well 
as the deed from Jay B. Crook to the defendant Hans­
berry be set aside for fraud but failed to secure the 
joinder of the First National Bank of Englewood as a 
party plaintiff. No decree could be entered granting 
any such relief where the First National Bank of Engle­
wood was not a party plaintiff and seeking such relief. 
See Riley v. Webb, 272 111. 537 at pages 538 and 539 where 
the Supreme Court of Illinois said:

“ It is a rule in equity that all persons who have 
any substantial legal or beneficial interest in the 
subject matter in litigation and who will be ma­
terially affected by the decree must be made par­
ties.”

(c) Because it fails to join as a necessary party defend­
ant, Eva Somerman, who is alleged to have signed the cove­
nant.

The complaint alleges that Eva Somerman executed 
and signed the alleged covenant or agreement (Abst. 
9; Rec. 7) but plaintiffs fail to make Eva Somerman 
a party defendant. Eva Somerman as an alleged signer



43

of the restrictive agreement has an interest in the sub­
ject matter of the cause and should have been made a 
party to this suit. The present action is for an injunc­
tion and other relief based on the alleged restrictive 
agreement or covenant and the signer of the alleged re­
strictive agreement or covenant is a necessary party. 
See Nolan v. Barnes, 268 111. 515 at 523.

The complaint was likewise defective for the reason 
that it reveals that Sam Somerman the husband of Eva 
Somerman had some interest in the real estate involved 
in the complaint and purchased by the defendants Hans- 
berry (Abst. 9; Rec. 7 ); the complaint failed to show 
that Eva Somerman alone had the title to the premises 
at 6140 Rhodes Avenue purchased by the Hansberrys 
(Abst. 9; Rec. 7) but on the contrary shows that Sam 
Somerman had an interest in the premises as well as 
Eva Somerman and has not been made a party as re­
quired by well established rules of law.

The complaint is likewise fatally defective and insuffi­
cient and could not furnish the basis for injunctive re­
lief against the defendants because the plaintiffs failed 
entirely to make the alleged 500 or more signers of the 
alleged restrictive agreement parties plaintiff or de­
fendant. All of the 500 or more signers of the alleged 
restrictive agreement as well as Eva and Sam Somer­
man were necessary parties to a suit in which the plain­
tiffs sought to secure specific performance of an alleged 
restrictive agreement in respect to 500 or more parcels 
of real estate, the owners thereof, and their grantees 
and assigns. See Whitney v. Mayo, .15 111. 251 at 255; 
Cowles v. Morris & Co., 330 111. 11 at 26; Nolan v. Barnes, 
258 111. 515.

(d) The complaint is defective and insufficient because the 
proper and sufficient allegations have not been set forth to 
make the suit a representative action.

The plaintiffs have failed to set forth sufficient grounds 
and reasons for their failure to join all of the 500 or



44

more property owners who were mentioned in the com­
plaint. Positive and definite allegations are absolutely 
necessary in order to bring the plaintiffs within the ex­
ception to the general rule that all persons having an 
interest in the subject matter of the suit must be made 
parties. See Whitney v. Mayo, 15 111. 251 at 255; 21 
Corpus Juris, pp. 286, 287.

Plaintiffs have not shown in their complaint that the 
names and residences of the 500 or more property owners 
cannot be obtained without great and extraordinary diffi­
culty; nor have plaintiffs alleged that it would be un­
duly expensive to make such persons parties to the 
action; nor have plaintiffs alleged that it would be diffi­
cult to serve the 500 or more property owners. On the 
other hand because they are property owners it would 
therefore be easy to find such persons and to serve them 
as parties since it appears from the complaint that the 
area covered by the restrictive agreement is a small and 
compact district (Abst. 14; Rec. 12).

It clearly appears from the face of the complaint that 
all of the alleged 500 or more property owners are not 
interested in the enforcement of the alleged restrictive 
agreement and are therefore not interested in the relief 
prayed for in this complaint (Abst. 14). On the con­
trary, it clearly appears that there is a definite and 
serious conflict of interest, purpose and desire among 
the said 500 or more property owners in respect to the 
sale of their property to colored people, and that their 
interests are not identical but rather sharply conflict­
ing (Abst. 14; Rec. 13). The complaint shows on its 
face that the defendant Katz according to the plaintiffs 
threatened to sell his property to colored people (Abst. 
14; Rec. 14). The complaint further shows on its face 
that there -was an alleged violation of the covenant at 
413 Bast 60th Street; the complaint likewise alleges that 
the former president of the Woodlawn Property Owners’ 
Association the avowed object of which was the en­
forcement of the alleged restrictive agreement, resigned



45

as such president and executive secretary and was con­
spiring to place colored people in the possession of cer­
tain parcels of real estate in the alleged restricted area; 
the complaint likewise shows on its face that there have 
been numerous violations of the alleged restrictive agree­
ment by the owners of the properties on both sides of 
South Park Avenue between 60th and 61st Streets, and 
on a portion of 60th Street (Abst. 14).

It is fundamental in the doctrine of representation 
that a part of a class cannot destroy the interest of an­
other part of the same class who are not parties to the 
suit. See Weberpals v. Jenny, 300 111. 145. The com­
plaint shows on its face that the plaintiffs are attempt­
ing to destroy a portion of the rights of the persons 
who are a part of the class whom the plaintiffs here pur­
port to represent.

III.

A temporary mandatory injunction should not lie where 
it disturbs the status quo of the parties to the action.

The interlocutory order of July 8, 1937, from which 
defendants now prosecute this appeal is as to the de­
fendants, Hansberry, in effect a mandatory temporary 
injunction; the order in paid says (Abst. 26-27):

The Court further finds that according to the 
verified complaint herein, the defendants Carl A. 
Hansberry and Nannie L. Hansberry, his wife, are 
unlawfully in title, possession and occupancy of the 
premises described as:

Lot Twenty-seven (27) in Block Two (2) in the 
Resubdivision of Blocks Eleven (11 ) and Twelve 
(12) in the Resubdivision of the Washington Park 
Club addition to Chicago in the South half (SV2 ) 
of the South East Quarter (SE 14 ) of Section Eif- 
teen (15) Township Thirty-eight (38) North, 
Range Fourteen (14), East of the Third Prin­
cipal Meridian, commonly known as 6140 Rhodes 
Avenue, Chicago, Cook County, Illinois



46

and in violation of a Restrictive Agreement re­
corded February 1, 1928, as Documents 9914711, 
9914712, 9914713 and 9914714; and it is 

T h e r e f o r e  F u r t h e r  O rd er ed  that said Defend­
ants, Carl A. Hansberry, (herein sued as Paul A. 
Hansberry) and Nannie L. Hansberry, his wife, their 
servants, agents and attorneys vacate and give up 
possession and occupancy of said above described 
premises or any part thereof, commonly known as 
6140 Rhodes Avenue, Chicago, Illinois, within Ninety 
(90) days from the entry of this order, until the 
further order of this Court and on failure to do so 
that a Writ of Assistance issue.”

The entry of the finding aforesaid and the order di­
recting the Hansberrys to vacate within ninety days in 
effect settles the main question involved in this lawsuit. 
The law in this State is clear that such a temporary 
mandatory order cannot be entered, except under rare 
circumstances, upon application by plaintiffs of a tem­
porary injunction and before a final hearing of the issues 
involved on the merits. In the case of City of Chicago 
v. Peoples Gas Light & Coke Company, 170 111. App. 
at 109, the rule as to the issuance of mandatory prelimi­
nary injunctions is stated as follows:

“ The rule as to the issuance of a mandatory pre­
liminary injunction is thus stated in High on In­
junctions, 4th Ed., Sec. 2: ‘While a court of equity
is always reluctant to grant a mandatory injunction 
upon an interlocutory application before final hear­
ing, it may do so in an extreme case where the right 
is clearly established and the invasion of the right 
results in serious injury.’

In Florida East Coast Ry. Co. v. Taylor, et al., 
47 Southern Rep. 345, the rule is thus stated: ‘ It 
is settled by an overwhelming weight of authority 
that except in rare cases where the right is clear and 
free from reasonable doubt, a mandatory injunction 
commanding the defendant to do some positive act 
will not be ordered, except upon final hearing, and 
then only to execute the judgment or decree of the 
court. ’



47

In Hunt v. Sain, 181 111. 372, 378, the court appar­
ently holds that a mandatory injunction will never 
he ordered except on final hearing; but this was in­
terpreted in City of Rock Island v. Central Union 
Telephone Co., 132 111. App. 248, 259, as stating 
only the usual rule. * * *

In view of these authorities thus clearly limiting
the power of a court of equity in the issuance of
mandatory preliminary injunctions to very rare
cases of extreme urgency, where the right is clear
indeed and free from reasonable doubt, the obvious
question to be determined is whether such an extreme
case is made by the bill and exhibits in this case. # * #

No case has been cited by counsel in which a man­
datory preliminary injunction has been granted upon 
facts such as are here alleged. * * *

These views require us to reverse the interlocu­
tory order appealed from and the same will there­
fore be reversed.”

The facts alleged in the instant complaint do not even 
remotely tend to bring this case within the rare exceptions 
stated in the cases cited. The defendants Hansberry 
are already in possession of the premises in question; 
if they have entered possession and have taken title in 
violation of the alleged Restrictive Agreement, the harm 
has already been done; to allow them to remain in pos­
session until the questions of law and fact involved in 
the case on its merits shall have been determined would 
certainly cause no greater damage or injury to the plain­
tiffs than they have already sustained, assuming accord­
ing to their own complaint that damage and injury have 
been thus sustained. The allegations in the complaint as 
to damage (Abst. 13) charge that the total value of the 
property of the plaintiffs was upwards of One Hundred 
Thousand Dollars until 6140 Rhodes Avenue was sold to 
and occupied by Hansberry, a Negro, and his family; 
that ‘ ‘ plaintiffs real estate has been irreparably damaged 
in value, said plaintiff’s tenants all of whom are white 
persons, are threatening to break their leases and vacate



48

the apartments occupied hy them” . Plainly, these alle­
gations refer to damages already sustained by the plain­
tiffs as a result of the moving into the property of the 
defendants, Hansberry. There is no allegation in the 
complaint alleging that if the defendants, Hansberry, 
are permitted to remain in possession of the premises 
until the hearing of the case on the merits, additional 
damages to those specifically alleged, will be sustained. 
In fact, the only allegation as to the suffering of addi­
tional damages by reason of the continued occupancy of 
the property by Hansberry is to this effect: “ That said 
plaintiffs will suffer other irreparable injury to their 
property and property rights unless said defendants, 
Paul A. Hansberry and Nannie L. Hansberry, are com­
pelled by the decree of this court to vacate said premises ’ ’. 
These allegations are conclusions; they fail to state 
wherein the plaintiffs will suffer additional damages on 
account of the continued occupancy of said premises by 
the Hansberrys until the hearing of the case on the merits. 
Therefore, it is plain that this is not one of those rare 
cases in which the court will grant an injunction, manda­
tory in character, before hearing on the merits. Obviously 
the court exceeded its authority in granting such a 
mandatory order against the Hansberrys.

In the case of Paxton v. Favry, 200 111. App. 104, there 
was involved a restrictive covenant against the use of 
property in Zion City for business— a case almost on 
all-fours with the instant case, except that the prohibi­
tion here is against the occupancy of property by colored 
people. In that case on the application for preliminary 
injunction the Circuit Court of Lake County, granted 
the injunction restraining the defendant from using any 
part of the premises as a cigarette, cigar or tobacco 
store; or a place for the manufacture or sale of tobacco 
in any form or manner; or pharmacy, apothecary shop 
or drug store; or a place for the manufacture or sale 
of drugs or medicines of any kind; or the office residence 
of a practicing physician, surgeon or other person actually



49

engaged in the practice of medicine or surgery. The 
Appellate Court on review reversed the order for tem­
porary mandatory injunction and in the abstract of the 
decision it is stated as follows:

“ The merits of the case are not passed upon in 
considering the issuance of a preliminary injunction, 
but the court should inquire whether less harm will 
result to the enjoined party if he should finally be 
victorious than would accrue to the complainant 
from the absence of the injunction were he a winning 
party.

“ The object of a preliminary injunction is to 
maintain the status quo, to maintain property in its 
existing condition, to prevent further or impending 
injury and not to determine the right itself. Great 
caution should be used in issuing a mandatory in­
junction at a preliminary hearing and the complain­
ant must make out a clear case free from doubt or 
dispute as a basis for its issuance.

“ When the question of law is one of the chief 
issues to be determined, on the final hearing, and 
complete relief can then be afforded, the complain­
ant is not entitled to a preliminary injunction. ’ ’

We say here that the principal of law laid down in 
the Paxton v. Favry case should be the guide-post in the 
instant case: the chief issue to be determined on the final 
hearing in this case is whether or not the defendants, 
Hansberry, lawfully obtained title to the property in 
question and whether under all the law and the facts 
as the title owners of the property they have a right to 
occupy it, notwithstanding the alleged restrictive agree­
ment. As argued under Point I of this brief, it has been 
pointed out that the restrictive agreement itself by its 
own language does not become effective until executed 
by the owners of ninety-five per cent of the frontage con­
tained in the alleged restricted area and that there is no 
allegation in the complaint itself positively averring that 
the owners of ninety-five per cent of the frontage in said 
restricted area actually did execute the alleged agree­
ment. On the issue of fact alone as to the execution of



50

the said agreement by the required number of signers 
the complaint presents such doubt as to make it clear 
that the legal discretion of the Judge in the court below 
in granting the injunction was seriously abused and un­
warranted.

In the case of Bobrinsky v. Boylan, 222 111. App. 494, 
the court below granted a preliminary mandatory injunc­
tion commanding defendants to remove from an outlet 
across defendants ’ lands, which was alleged to have been 
used for over fifty years and had constituted a right of 
way, obstructions such as posts, a barb-wire fence and 
a gate, and requiring the restoration of the right of way 
to its former condition, it was improvidently granted be­
fore issue joined and before the rights of the defendants 
could be tried. In reversing the temporary injunction 
on appeal the Court at page 498 said the following:

“ In Wangelin v. Goe, 50 111. 459, which related 
to a preliminary mandatory injunction, it was said 
that an injunction is a preventive remedy and can­
not be framed to command a party to undo what he 
has done and that such an injunction should not be 
awarded after the act is done; that, if the injury is 
already done, the writ can have no operation, and 
that the preliminary mandatory injunction issued 
in that case was wrongfully sued out. In Lake Shore 
& M. S. By. Co. v. Taylor, 134 111. 603, a similar case, 
the court said: ‘ Since the wrong which appellee
sought to avoid by the injunction had been done 
before her bill was tiled, and she knew it, the pre­
liminary injunction was improvidently granted.’ 
In Hunt v. Sam, 181 111. 372, the court, on p. 378, 
said that while jurisdiction in equity by way of man­
datory injunction is rarely exercised, it is neverthe­
less too firmly established to admit a doubt; but 
that ‘ a mandatory injunction, commanding the plain­
tiff (meaning, we assume, the defendant) to do some 
positive act, will not be ordered except upon final 
hearing, and then only to execute the judgment or 
decree of the court.’ World’s Columbian Exposi­
tion Co. v. BremcM, 51 111. App. 128; Lowenthal v. 
New Music Hall Co., 100 111. App. 274; Thomson &



51

Taylor Spice Co. v. 1. Lanshi <& Son Scrap Iron Co., 
209 111. App. 331. In view of these authorities, it is 
not seen how we can sustain this injunction, which 
requires appellants at once and before issue joined, 
and before the rights of appellee can be tried, to 
undo that which had been done before the bill was 
filed.

The description of the location of the supposed 
roadway in the bill is not clear as it ought to he made 
before or at the trial of the cause. We make this 
suggestion in view of the possibility that a manda­
tory injunction may be provided for in the final 
decree.

The order is therefore reversed.”

We have already pointed out the numerous inaccura­
cies and inconsistencies in the complaint, for example, 
the inaccurate setting forth of the description of the 
properties covered in the alleged restricted area (Argu­
ment Point I). In the Dubrinsky v. Boylani case, supra, 
the Court indicates at the end of its opinion that the 
failure to allege the description of the property clearly 
would be a bar to the issuance of a mandatory injunc­
tion, even upon final decree. I f that is the case, cer­
tainly on the application for temporary mandatory in­
junction, inaccurate description of the property and 
other inaccuracies as set forth in more detail in this 
argument, amply justify this Court now to reverse the 
temporary mandatory order of July 8 , 1937.

A recent case involving the issuance of a temporary 
mandatory injunction is the case of Cleaning cmd Dye­
ing Plant Owners v. Sterling Cleaners $  Dyers, Inc., 
278 111. App. 70, where the Court held that an interlocu­
tory injunction, mandatory in character, should not be 
issued where it was sought to fix prices for cleaning and 
dyeing. In that case the Court said on page 77:

“ When we consider the order in the instant case, 
the court directs the defendants to desist from sell­
ing or rendering cleaning and dyeing service for 
less than the prices specified in the order, or, in 
other words, in order to render service, the defend­



52

ants are obliged to sell their service at the prices 
provided for in the order. The effect of this injunc­
tion order is mandatory in character. The rule is 
that caution should be exercised in the issuance of 
a mandatory injunction based upon the sworn bill 
of complaint alone. The plaintiff must make out a 
clear case, free from doubt or dispute, as a basis 
for its issuance. Where, as in the instant case, com­
plete relief may be afforded the complainant upon 
a final hearing, upon the facts stated in the bill, the 
plaintiffs are not entitled to a temporary injunction 
which is mandatory in character.”

The injunction in the case at bar as to the Hansberrys 
is mandatory in character and since the plaintiffs have 
failed to make out a clear case in their complaint, free 
from doubt or dispute, the court below should by no 
means have issued the order directing the Hansberrys 
to vacate the premises in question.

It seems useless to dwell longer upon this question 
and to cite additional cases in support of the proposi­
tion that the courts of Illinois have long recognized the 
legal principle that temporary injunctions are to be is­
sued only for the purpose of maintaining the status quo 
and not where their effect would be to determine judi­
cially the final judgment of the Court, But there are 
two other citations which should be stated in support 
of this proposition. Our Supreme Court in the case of 
Mena-rd v. Wood, 68 111. 121, said at page 1 2 2 :

“ In our practice the writ of injunction is only 
called into use to afford preventive relief. It is 
never employed to give affirmative relief, or to cor­
rect wrongs and injuries already perpetrated, or to 
restore parties to rights of which they have been 
deprived. ’ ’

That same principle was approved in the case of Bax­
ter v. Board of Trade, 83 111. 146, where the Court said 
at page 147:

“ If a party has been excluded from the rights 
and privileges of a corporation, he ought not to be



53

restored until it has been determined that the act 
of its expulsion by the corporation was illegal; and 
yet, if the remedy was by injunction, as is claimed 
here, the effect would be to restore the party in the 
first instance, even though he may have been legally 
expelled, and leave the determination of the legality 
of the act to be determined in the future. We do not 
understand resort can be had to the writ of injunc­
tion, either directly or indirectly, to obtain affirma­
tive relief.”

And another case of the Supreme Court, Hunt v. Sain, 
181 111. at p. 378, is to this effect:

“ A mandatory injunction commanding the plain­
tiff to do some positive act, will not be ordered ex­
cept upon final hearing, and then only to execute 
the judgment or decree of the court.”

From the cases cited, it is clear that under the deci­
sions of the courts of this state, a mandatory temporary 
injunction may not be granted, except under rare cases, 
where the granting of a mandatory injunction disturbs 
the status quo of the parties and judicially determines 
in advance the final judgment of the Court. If there 
were ever a case which is practically in all respects simi­
lar to the cases cited, it is the instant case. Therefore, 
the rule of law applicable to the issuance of temporary 
mandatory injunctions as set forth in the cited cases 
should apply here; and we contend, if applied here, this 
Court on appeal is bound to reverse the temporary man­
datory order entered July 8, 1937, by the court below 
against the defendants Hansberry.

IV.

As to the defendants, Burke, Supreme Liberty Life Insur­
ance Company, and Pace, the complaint fails to show 
any legal basis for equitable relief because:

(a) The complaint does not show these defendants to be 
under any obligation not to violate the alleged agreement;



54

(b) As to defendants, Supreme Liberty Life Insurance Com­
pany, and Pace, the complaint asks relief against acts mani­
festly permitted by the terms of the alleged restrictive agree­
ment.

The complaint does not allege that the defendants 
Burke, Supreme Liberty Life Insurance Company, and 
Pace are parties signatory to the alleged restrictive 
agreement, or that they are under any obligations not 
to violate it.

They are neither parties signatory, or purchasers 
with notice, of any parcels of property alleged to be cov­
ered by the alleged restrictive agreement. Where a re­
strictive agreement with respect to the use of property 
is valid, it may be enforced only against one under an 
obligation not to violate the covenant. See New York 
Phonograph Company v. Davega, 32 Corpus Juris, page 
203, Section 315; 127 App. Div. 222, 111 N. Y. Sup. 363.

As to defendants, Supreme Liberty Life Insurance 
Company, and Pace, the complaint asks relief against 
acts manifestly permitted by the terms of the alleged 
restrictive agreement (Abst. 4).

V.

The Chancellor erred in issuing a temporary injunction 
against the defendants when it did not positively and 
clearly appear from the complaint that there was any 
substantial and palpable violation of any rights of the 
plaintiffs, and where the complaint also failed to show 
that the plaintiffs would suffer an irreparable injury 
in consequence of any threatened acts of the defend­
ants.

The plaintiffs in their complaint failed to set forth 
affirmatively any clear and distinct allegations upon 
which their rights to a temporary injunction might be 
based. In paragraph 2 of the complaint, the plaintiffs



55

alleged that the restrictive agreement should be in full 
force and effect when the said agreement should be 
signed by the owners of ninety-five per cent of the 
‘ ‘ frontage above described” , but in Paragraph 3, plain­
tiffs alleged that ninety-five per cent of the owners of 
the “ frontage above described”  signed the alleged re­
strictive agreement (Abst. 8; Rec. 6). It, therefore, 
appears from the complaint that the rights of the plain­
tiffs are doubtful by their own allegations, for the rea­
son that ninety-five per cent of the owners who signed 
the alleged restrictive agreement might not own ninety- 
five per cent of the frontage of the restricted area.

Allegations of fact relied upon by a plaintiff in sup­
port of a motion for a temporary injunction should rest 
on clear averments and not upon inference. See Spiller 
v. Ensign, 205 111. App. 154; Springfield  v. N orth F ork  
Drainage D istrict, 249 111. App. 133; P axton  v. Fabry, 
200 111. App. 104.

In the case of A llott v. Am erican Strawboard Com ­
pany, 237 111. 55 at 62, the Supreme Court said:

“ It has been repeatedly held that equity will not 
assume jurisdiction and issue an injunction unless 
the party complaining shows that he will be injured 
if relief is not granted. And it is also a rule that 
the allegations must be clear and distinct and sup­
ported by satisfactory evidence that a substantial 
injury will be sustained. It has also been held that 
to authorize an injunction, there should not only 
be a clear and palpable violation of rights of com­
plainant, but the rights themselves should be cer­
tain and such as can be clearly ascertained and meas­
ured. The courts will not grant an injunction to 
allay the fears or apprehensions of individuals un­
less there is a reasonable probability of the threat­
ened acts complained of being committed.”

The complaint itself likewise shows that the rights of 
the plaintiffs are doubtful because there is a substan­
tial, wide and material variance between the alleged 
restricted area as set forth in the restrictive agreement



56

itself (Abst. 2) and the alleged restricted area as set 
forth in the allegations of Paragraph 1 of the complaint 
(Abst. 2; Rec. 4). There is nothing in the alleged re­
strictive agreement itself which limits the restricted 
area in terms of distances between alleys and streets, 
but on the contrary, the boundary lines in the restrictive 
agreement, itself are defined and limited between 60th 
Street to 63rd Street and from South Park Avenue to 
Cottage Grove, including both sides of all of the streets.

There is no exception of the Austin Sexton Public 
School in the restricted area defined in the restrictive 
agreement, but the plaintiffs in their allegations in Par­
agraph 1 of the complaint (Abst. 2), seek to make this 
exception, as they likewise seek to except certain other 
streets from the restricted area. It thus appears that 
the rights of the plaintiffs are extremely doubtful be­
cause the restricted area itself is shown to be in doubt 
on the face of the complaint. If the plaintiffs themselves 
have so much doubt as to what area is included within 
the alleged restricted area, then surely no court should 
issue an injunction based upon such doubtful rights.

The plaintiffs’ rights are shown by the complaint to 
have been doubtful because the complaint shows on its 
face that there had been many violations and breaches 
of the alleged restrictive agreement, and that the right 
to enforce the alleged restrictive agreement may have 
been waived by laches, acquiescence in breaches and vio­
lations, and the change in the character of the neighbor­
hood (Abst. 11, 14).

The remedy by injunction is extraordinary and be­
fore it can be successfully invoked, a complainant should 
be required to make it clear that he has lawful rights 
for which he seeks protection and that there is a definite 
violation of them on the part of the defendant, which 
violation he seeks to prevent. See Wilson-Broadway 
Building Corporation v. Northwestern Elevated Rail­
way, 225 111. App. 306. Mere conclusions without the



57

statement of specific facts are not sufficient upon which 
to base a motion for temporary injunction. Labodie v. 
M orris, 303 111. 321.

When the extraordinary remedy of injunction is sought 
upon the face of the complaint, a court of equity is not 
entitled to supply by assumption, important material 
facts. See Gage v. The Village o f W ilm ette, 233 111. App. 
30.

The plaintiffs did not make a clear and affirmative 
showing by allegations of any substantial injury which 
might be suffered by them. Courts will not issue in­
junctions merely to prevent wrong in the abstract, nor 
will they seek to prevent a wrong that is merely nom­
inal. See Allott v. Am erican Strawboard Company, 237
111. 55; High on Injunctions, Section 1; N ewby  v. H igh­
way Commissioners, 21 111. App. 245.

The plaintiffs likewise failed to set forth affirmatively 
the manner in which the plaintiffs would suffer an ir­
reparable injury and damage in consequence of any acts 
apprehended. It is not sufficient to charge in general 
terms that the defendant threatens to do the plaintiffs 
irreparable injury, but the complaint must allege and 
it must affirmatively appear from the facts set forth 
that the injury will be sustained by the plaintiff as a 
consequence of the acts apprehended. See W ashingtonian  
Home v. Chicago, 281 111. 110. There were no allega­
tions in the complaint to the effect that Burke, Hans- 
berry and Pace were threatening to place negroes in 
any other definitely named p rop erty  in the alleged re­
stricted area. There was no allegation that the Supreme 
Liberty Life Insurance Company threatened to do any­
thing in any definite and specific manner. All of the 
allegations in the complaint merely sound in tort for 
damages for acts which had already taken place at the 
time of the filing of the complaint and against the doing 
of which no temporary injunction might issue. The 
complaint contains only general conclusions in which



58

the plaintiffs state fear in mere general terms without 
stating what specific and definite acts are threatened 
immediately by the defendants, or any of them. In re­
spect to the defendant, Israel Katz, the complaint showed 
on its face that no injunction should have been issued 
as against him (Abst. 14-15), for the reason that the 
complaint, which was filed on June 7, stated merely that 
Katz had on the 27th day of May, 1937, threatened to 
sell his building; the complaint stated that Katz had 
up to the date of the filing of the complaint, always ob­
served the alleged restrictions contained in the alleged 
restrictive agreement (Eec. 14). It goes without saying 
that a court of equity does not do vain things. The com­
plaint merely set fo rth  allegations o f a conspiracy in  
tort sounding in doomages fo r  acts already com m itted; 
the complaint did not affirmatively set forth any acts 
from which the Court might reasonably believe that any 
o f the defendants threatened to do any other acts which 
might result in any substantial in jury to the plaintiffs.

The complaint did not show clearly and affirmatively 
in what manner the plaintiffs would suffer irreparable 
injury and damages. There was no clear statement 
showing the manner in which irreparable injury and 
damage would be suffered by the plaintiffs; there was 
no clear and affirmative allegation showing how the prop­
erty of the plaintiffs would depreciate in value if the 
Hansberrys owned and occupied the premises at 6140 
Rhodes Avenue. A mere general statement that the 
plaintiffs will suffer an irreparable injury is not suffi­
cient basis upon which the Court might issue a tempo­
rary injunction against the defendant. Some exact 
and precise statement must be made and the facts and 
circumstances set forth from which it might clearly ap­
pear that irreparable injury would follow unless the 
injunction was granted. See W ashingtonian H om e v. 
Chicago, 281 111. at 110.



59

VI.

The court should not entertain jurisdiction on the issues 
involved herein because:

(a) A prior action is pending between the same par­
ties involving the same issues, in the Supei’ior Court 
of Cook County.

(b) Under the alleged restrictive agreement it is pro­
vided that the plaintiffs may file any legal or equitable 
proceedings. Having elected to proceed at law by filing 
Case No. 37 S-7357 in the Superior Court of Cook Coun­
ty, they should not be permitted to receive equitable 
relief in the Circuit Court.

At the outset, the attention of the lower Court was 
called to the pendency of a prior action in the Superior 
Court of Cook County, Case 37 S 7357, between sub­
stantially the same parties and involving the same sub­
ject matter. The Superior Court case was filed on 
June 3, 1937; the instant case on June 7, 1937. The 
plaintiffs in the Superior Court matter were the same 
as those in the instant case with the exception of Kathryn 
Luttrell.

It is our contention, as the Court states in Newman 
v. Commercial Bank of Peoria, 156 111. 530, that it is 
elementary “ in all cases of concurrent jurisdiction the 
court which first obtains jurisdiction will retain it to 
the end of the controversy, to the exclusion of all others. 
An opposite rule would lead to endless confusion and 
uncertainty.”  In that case the original action was one 
at law in the Peoria County Circuit Court and the second 
suit was filed in chancery in the Pike County Circuit 
Court. To the same effect is the case of Nolan v. Barnes, 
208 111. at page 520. It should be further noted that the 
case just cited was decided before the passage of the new 
Civil Practice Act which gives it additional force by mak­
ing it possible to join legal and equitable claims.



60

It is also urged by the defendants that the agreement 
upon which plaintiffs rely provides that the parties 
thereto might institute legal or equitable action (Abst. 
4). Under the unbroken line of decisions that the lan­
guage of an instrument will be most strongly construed 
against its makers, “ or”  should be interpreted in its 
disjunctive sense and hence the filing of the Superior 
Court action at law should be regarded as an election. 
(46 C. J. 1126.)

While we feel certain that the interlocutory order of 
July 8, 1937, should be reversed on other grounds here­
in argued, we respectfully insist here that the plaintiffs 
should not be permitted to pursue equitable relief in the 
Circuit Court of Cook County, after they had commenced 
proceedings in the Superior Court, a court of concurrent 
jurisdiction, involving the same subject matter, and 
that therefore this Court on appeal should reverse the 
order entered and dismiss the complaint for want of 
jurisdiction.

VII.

The Court had no jurisdiction to direct the issuance of a 
writ of assistance against the defendants, Hansberry, 
before the entry of a final decree.

The Chancellor in the order dated July 8, in which 
he directed the issuance of a temporary injunction 
against the defendants, also directed the issuance of a 
writ of assistance upon the failure of the Hansberrys 
to vacate their premises at 6140 Rhodes Avenue, with­
in ninety days from the entry of the order (Abst. 27).

The Court had no jurisdiction whatsoever to order 
the issuance of a writ of assistance against the defend­
ants Hansberry before the entry of a final decree, in 
which a finding was made as to the right to the posses­
sion of the premises involved. See Stubbs v. Austin, 
285 111. App. 535.



61

In the case at bar, the order entered by the Chancellor 
was merely for the issuance of a temporary injunction; 
the case was not even at issue and there had been no 
trial upon the merits.

The sole purpose and object of the writ of assistance 
is to put a person in possession who has purchased prop­
erty at a judicial sale under a decree in chancery. See 
McDonnell v. Hartnett, 323 111. 87.

The writ could not issue where the rights of the 
respective parties had not been fully and finally ad­
judicated in the principal suit. 5 Corpus Juris, Sec­
tion 4, Page 1370.

VIII.

The Court lacked jurisdiction to make a finding that the 
defendants, Hansberry, were unlawfully in title before 
the case was at issue and before a trial of the case 
on the merits.

In the order entered July 8, the Chancellor made a 
finding that the Hansberrys were unlawfully in title 
(Abst. 26, 27).

This was manifestly erroneous. The case was not 
at issue, the pleadings not having been settled, nor 
had there been any hearing on the merits of the case. 
The Court had no right nor jurisdiction to find that the 
Hansberrys were unlawfully in title, when the Hans­
berrys had not made any defense on the merits of the 
issues involved in the case. The Court had no jurisdic­
tion whatsoever to make a finding about the right to 
the title of the premises involved until and unless a 
hearing had been had on the merits of the case. See 
21 Corpus Juris, Page 578, Section 709; Blair v. Read­
ing, 99 111. 600.

The very essence of the controversy in this case is 
the right of the Hansberrys to the title to the property 
which they purchased. The determination of the right



62

to the title to the premises purchased by the Hansberrys 
before the case was at issue and before any hearing 
had been had upon the merits, was a plain denial of 
due process of law, and is reversible error. See Chicago, 
etc. Railway Company v. St. Louis, etc., Railway Com­
pany, 79 111. App. 384; 21 Corpus Juris, Page 578, Sec­
tion 709.

In the case at bar, the Chancellor sought by the 
making of this finding to determine the right of the 
Hansberrys to the title of the property without giving 
them their day in court upon a trial on the merits.

IX .

The Chancellor erred in enjoining defendants, Hansberry, 
from collecting rents from tenants in possession of 
the premises owned by said Hansberrys.

The Chancellor in the order entered July 8, also en­
joined the Hansberrys, who were the rightful owners 
of the property, from collecting rent from their tenants, 
W. T. Mooney and Elizabeth Cotsones, and directed 
that the tenants deposit and pay the rental provided 
to the clerk of the Court (Abst. 26).

A tenant is estopped to deny his landlord’s title. See 
Ball v. Chadwick, 46 111. 28 at 29.

Mooney and Cotsones were estopped from denying 
the title of their landlords, Carl A. Hansberry and Nannie 
L. Hansberry. In the case at bar, the Chancellor violated 
all of the fundamental principles of law by restraining 
the landlord from collecting rent from his tenants upon 
the suit of the plaintiffs who were absolutely strangers 
to the title of 6140 Rhodes Avenue, Chicago. The 
plaintiffs had absolutely no legal right or interest in 
the premises at 6140 Rhodes Avenue, nor did they have 
any rights whatsoever in respect to the collection of 
rents from the tenants, Mooney and Cotsones.



63

It is a well established rule of law that the tenant 
cannot deny the title of his landlord and a fortiori, the 
plaintiffs certainly could not deny the right and title of 
the Hansberrys to collect rent from their own tenants.

The order of the Chancellor restraining the Hans­
berrys, the owners of the property, from collecting 
rents from their own tenants (Abst. 26) when it appeared 
from the face of the complaint that there was a mortgage 
encumbrance upon the premises upon which principal 
and interest were due and payable (Abst. 10) was an 
extraordinarily prejudical invasion of the Hansberrys’ 
property rights and was well calculated and designed 
to cause the Hansberrys to lose their property through 
mortgage foreclosure.

CONCLUSION.

In view of the record, the authorities cited, the rea­
sons given, and arguments advanced in support thereof, 
it is urged that the Court below erred in entering the 
interlocutory order of July 8, 1937, granting temporary 
injunction restraining the defendants in the name as set 
forth therein.

It is further urged that the said interlocutory order 
as entered in the court below should be reversed, vacated 
and set aside.

Respectfully submitted,

E a r l  B. D ic k e r s o n ,
T r u m a n  K. G ib s o n , J r .,
C. F r a n c is  S t r a d f o r d ,
L o r in g  B. M o o re ,
I r v in  C. M o l l is o n ,

Attorneys for Appellants.









"/N:a: a: c. p.
m  FIFTH  AVENUE  
N EW  Y O R K , N. Vi

IN THE

Supreme Court of the United States
O ct o b e e  T e e m , A. D. 1939.

No. 2-Q..J-----

CARL A. HANSBERRY, NANNIE L. HANSBERRY, 
SUPREME LIBERTY LIFE INSURANCE COM­
PANY, a corporation, HARRY H. PACE, JAMES 
JOSEPH BURKE and ISRAEL KATZ,

Petitioners,
vs.

ANNA M. LEE, EDWARD L. OOVANUS, ESTHER 
GOVANUS, LOUISE 0. ANDERSON, LYMAN M. 
ANDERSON and KATHRYN LUTTRELL,

Respondents.

PETITION FOR W R IT OF CERTIORARI TO THE  
SUPREME COURT OF ILLINOIS AND BRIEF IN  
SUPPORT THEREOF.

EARL B. DICKERSON,
TRUMAN K. GIBSON, JR.,
C. FRANCIS STRADFORD,
LORING B. MOORE,
IRVIN C. MOLLISON,

Attorneys for Petitioners.

B arnard M iller, Printers, F r a  nklin 0562, C hicago



• ............

'







SUBJECT INDEX.

PAGE

Petition for Writ of Certiorari...........................................  1
Summary and Short Statement of Matter Involved 2 
Statement Particularly Disclosing the Jurisdic­

tion of the Court to R ev iew ............................ 11
Questions Presented .................................................  16
Reasons Relied on for Allowance of W rit....................  19

Supporting Brief ............................................................... 26
Opinion of Court Below (majority and dissent­

ing) ........................................................................47, 54
Jurisdiction ................................................................. 2,26

Date of Judgment and Denial of Petition for
Rehearing ........................................................  26

Statement of the Case...............................................2, 27
Specification of Errors.............................................  27
Summary of the Argument...................................... 29-31

I. A  property owners’ restrictive agreement be­
tween 500 or more different owners owning 500 
or more different and dissimilar parcels of real 
estate cannot be the subject matter of a class 
or representative suit, there being no common 
subject matter and no identity of interest 
among them. The case of Burke v. Kleiman 
in which one property owner was suing an­
other property owner to the injury and det­
riment of the latter and where there was a 
dispute, conflict of interest and diversity of 
opinion as to the enforcement of the agree­
ment was not a representative class suit, and 
the decree therein could not bind the privies 
or the petitioners herein who were not par­
ties and not served with process of summons, 
on the theory of res judicata................................ 32



A. The decree enjoining Supreme Liberty Life
Insurance Company, as mortgagee, and 
Harry II. Pace, sued as its president, was 
manifestly erroneous and so unreasonable 
and arbitrary as to deny these petitioners 
of their rights and property without due 
process of law, particularly in that the 
agreement sought to be enforced specifically 
exempted mortgagees from its operation... 35

B. The decree in Burke v. Kleinian could not
be res judicata as to the petitioners and 
their privies not parties to nor served with 
process therein, because there was no exist­
ing class, it having been proved in the in­
stant case that there was no agreement in 
fact among the property owners, and as 
a consequence the court did not have juris­
diction to hind any one, and especially not 
the petitioners and their privies who were 
not parties and not served with summons 
or process in said case, and said decree 
of Burke v. Ivleiman was therefore void 
and could not be res judicata.......................... 36

II. The proceedings and the decree in the case of 
Burke v. Kleiman found by the trial chan­
cellor to have been fraudulently and collusively 
brought and obtained upon the basis of a false 
stipulation of facts that the required frontage 
consent had been obtained, cannot be res judi­
cata against anyone, and especially not against 
the petitioners and their privies who were not 
parties and were not served with summons or 
process in said suit and given a real oppor­
tunity to defend.....................................................  37



I l l
p a g e

III. The enforcement, by the State courts by means
of a mandatory injunction of a harsh, oppres­
sive and discriminatory restrictive agreement 
among property owners wherein Negroes are 
prohibited from owning and occupying real es­
tate solely on account of their race or color, 
deprives the petitioners of due process of law, 
the equal protection of the laws, and likewise 
abridges their privileges and immunities as 
citizens of the United States in violation of 
the 14tli Amendment to the Federal Constitu­
tion, and is in further violation of Secs. 1977 
and 1978 of Revised United States Statutes; 
such enforcement is contrary to the natural 
and inalienable rights of petitioners as citizens 
of the United States under the 14th Amend­
ment .........................................................................  40

IV. The decree of the State courts which deprived
the Hansberrys of their property without com­
pensation was so arbitrary and contrary to law 
as to amount to a mere spoliation in violation 
of their rights to due process of law under the 
14th Amendment to the Federal Constitution.. 43

V. The decree of the State courts enjoining Israel 
Katz, having been entered without any evidence 
whatsoever, is so plainly arbitrary and contrary 
to law, as to amount to mere spoliation of the 
petitioner Katz and as a consequence was an 
arbitrary and capricious judicial seizure of his 
property and a denial of his rights without due 
process of law in violation of the 14th Amend­
ment to the Federal Constitution........................ 43

Conclusion ........................................................
Appendix ....................................................



Table or Cases Cited.
p a g e

Beale v. Illinois M. & T. R. Co., 133 U. S. 290... 14, 21, 38 
Boswell v. Otis, 9 Howard 336.....................................20,35
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281

U. S. 673.................................................12-19,34,37,40,41
Burke v. Kleiman, 277 111. App. 519; 189 N. E.

372 ...................................................................6,7,8,9,20,27
Carlson v. Curtis, 234 U. S. 103.....................................  40
Carter v. Texas, 177 U. S. 442..................... 13, 22,40,41,42
Chase National Bank v. Norwalk, 291 U. S. 431.......... 12
Chicago, Burlington & Quincy R. R. Co., 166 U. S.

226 .......................................................................13,22,41,42
Christopher v. Brusselbock, 302 U. S. 500...................

..............................................................14-19-20, 21, 32, 36, 37
Colgate v. Harvey, 296 U. S. 404..................... 13,22,23,43
Creswill v. Knights of Pythias, 225 U. S. 246.. 14,23,40, 45
Delmar Jockey Club v. Missouri, 210 U. S. 324..........

......................................................................... 13,14,22,23,43
Earle v. McVeigh, 91 U. S. 503.......................................  12
Ex Parte Virginia, 100 U. S. 339..................... 13,22,40,42
Gandolfo v. Hartman, 49 Fed. 181................................40,41
Geter v. Hewitt, 22 Howard 364.....................................  24
Hale v. Hale, 146 111. 227, 258.........................................  32
Hamer v. New York Railways Co., 244 U. S. 266. . . .

........................................................................12-19-20-34
Hartford Life Ins. Co. v. Ibs, 237 U. S. 662.. . .12-19-20-32
Hatfield v. King, 184 U. S. 163.......................................  40
Home Telegraph Co., etc. v. Los Angeles, 227 U. S.

278 .................................................................................. 13,22
Hovey v. Elliott, 167 U. S. 409..................................... 21,36
Last Chance Mining Co. v. Tvler Mining Co., 157

U. S. 683..................................................................................
Lee v. Hansberry, 372 111. 369; 24 N. E. (2d) 37.. .  .26,47 
Lord v. Veazie, 8 Howard 251......................... 14,21,24,38



V
PAGE

Matthews v. Rodgers, 284 U. S. 521..............19-20-21, 32,36
Michaels v. Post, 21 Wall. 298................................. 14,21,38
Neal v. Delaware, 103 U. S. 370.....................................  22
Norris v. Alabama, 294 U. S. 578..................... 14,23,40,45
Old Wayne Life Ins. Co. v. McDonough, 204

U. S. 8 ........................................................................14-21,36
Pennoyer v. Neff, 95 U. S. 714......................... 12,20,34,35
Postal Cable Tel. Co. v. Newport, 247 U. S. 464..........

.................................................................... 12-19-20, 34, 37,40
Riehle v. Margolies, 279 U. S. 219........................... 14, 21, 38
Sannders v. Polard Park Co., 198 Atl. 269 (Md. Ct.

of Appeals) ....................................................................  35
Scott v. Donald, 165 U. S. 107................................. 12-19,21
Scott v. McNeal, 154 U. S. 34..............12-14-20-21, 34, 36, 37
Simon v. Craft, 182 U. S. 437........................................... 12
Simon v. Southern Ry. Co., 236 U. S. 115.................... 21
Smith v. Swormstedt, 76 Howard 2 8 8 .................. 12-19,32
Southern Pac. R. R. Co. v. Schuyler, 277 U. S. 601.. 40
Strauder v. West Virginia, 100 U. S. 303..............13,22,41
Truax v. Corrigan, 257 U. S. 321............................. 14,23,45
Twining v. New Jersey, 211 U. S. 78...........................  42
Wabash Railway Co. v. Adelbert College, 208 U. S.

38 ................................................................... 12-19-20,32,34
Ward v. Board of County Comm’rs, 253 U. S. 17........ 12
Weberpals v. Jenny, 300 111. 156.....................................  32
Williams v. Gibbes, 17 Howard 239............................. 12-19
Windsor v. McVeigh, 93 U. S. 274..................................  12

S t a t u t e s  C it e d .

Sections 1977 and 1978 Revised United States Stat­
utes, U. S. C. A., Title 8, Secs. 41 and 42..................
...................................................................... 15-22-26-28-30-42

Secs. 237b, 2 C. A., Title 28, Vol. 1, See. 344b............ 26

T e x t b o o k s .

Story, 6th Ed., Sec. 97, p. 109.........................................  32
Moore’s Federal Practice, Vol. 2, p. 2236.................... 32





EN THE

Supreme Court of the United States
O c t o b e r  T e r m , A. D. 1939.

No.

GAEL A. HANSBERRY, NANNIE L. HANSBERRY, 
SUPREME LIBERTY LIFE INSURANCE COM­
PANY, a corporation, HARRY H. PACE, JAMES 
JOSEPH BURKE and ISRAEL KATZ,

Petitioners,
V8.

ANNA M. LEE, EDWARD L. OOVANUS, ESTHER 
GOVANUS, LOUISE O. ANDERSON, LYMAN M. 
ANDERSON and KATHRYN LUTTRELL,

Respondents.

PETITION FOR W RIT OF CERTIORARI

To the H onorable C hief Justice and A ssociate Justices 
o f the Suprem e Court o f  the United S ta tes:

Your petitioners, C a r l  A. H a n s b e r r y , N a n n ie  L. H a n s -  

b e r r y , S u p r e m e  L ib e r t y  L if e  I n s u r a n c e  C o m p a n y , H a r r y  

H . P a c e , J a m e s  J o s e p h  B u r k e  and I s r a e l  K a t z , respect­
fully pray for a writ of certiorari herein, to review a 
certain final decision of the Supreme Court of the State of 
Illinois, being the highest court of said State, in the above



2

entitled action, the opinion and decision of said court 
having been rendered and filed on October 10, 1939, and 
a petition for a re-hearing, also filed on the 4th day of 
November, A. D. 1939, being within the time allowed by 
the rules of the Supreme Court of Illinois, which said 
petition for re-hearing was, after being entertained and 
considered by the said Supreme Court of Illinois, denied 
on the 13th day of December, A. D. 1939, and this petition 
for certiorari, together with the certified transcript of 
record are herewith filed in this court, being within three 
months after denial of the petition for re-hearing by the 
Supreme Court of Illinois.

SUMMARY AND SHORT STATEMENT OF THE 
MATTERS INVOLVED.

.i/S
The respondents, Anna M. Lee, Edward L. Govanus, 

Esther Govanus, Louise G. Anderson, Lyman M. Ander­
son and Kathryn Luttrell (Plaintiffs below), brought an 
action in the Circuit Court of Cook County, for the 
purpose of enforcing a certain “ restrictive agreement”  
purporting to involve 500 or more separate parcels of 
real estate owned by 500 or more owners in a certain 
section on the South Side of the City of Chicago. The 
area covered by the “ restrictive agreement”  consists of 
approximately 27 blocks and parts of blocks between 
60th and 63rd Streets and between Cottage Grove and 
South Park Avenues in the City of Chicago, which said 
area is surrounded on the South by approximately 12,000 
colored people (Rec. 251-252), on the North and West by 
approximately 50,000 colored people (Rec. 244, 252-253), 
on the North by Washington Park, used predominantly by 
colored people (Rec. 253), and 125 colored fam ilies have 
lived within the area fo r  periods o f time ranging from



3

three to five years prior to the commencement o f  this 
action. (Rec. 82.) The area includes South Park Avenue, 
which runs through and adjacent to the heart of a South 
Side district in Chicago occupied by at least 150,000 
colored people.

The substance of this agreement was that no part of 
the property purported to be restricted should be sold, 
leased to, or permitted to be occupied by any person 
of the colored race prior to January 1, 1948, or there­
after, unless said restrictive agreement should be abro­
gated by the owners of 75% of the frontage. The agree­
ment contained the following provision:

“ This agreem ent and the restrictions herein con­
tained, shall be o f no fo rce  or effect unless this 
agreem ent or a substantially similar agreem ent shall 
be signed by the owners above enumerated o f 95%  
percentum  o f  the fron tage above described  or their 
heirs and assigns, and recorded in the office of the 
Recorder of Deeds of Cook County, Illinois, on or 
before December 31, 1928.”

The complaint as amended, alleged that the owners of 
95% of the frontage signed the restrictive agreement, and 
that it was recorded February 1, 1928. It further alleged 
a conspiracy on the part of the defendants to destroy the 
agreement by selling or leasing property in the restricted 
area to Negroes. It charged particularly that there had 
been a conspiracy between the defendants, James J. 
Burke, Jay B. Crook, Harry H. Pace, The Supreme Lib­
erty Life Insurance Company, a corporation, and the 
Hansberrys, to violate said restrictive agreement by the 
acquisition and purchase of the premises at 6140 Rhodes 
Avenue (Rec. 10-13), by the said Hansberry through the 
means of Jay B. Crook. The plaintiffs charged that the 
defendant, Israel Katz, had listed for sale his property at



4

6018 Vernon Avenue, with James J. Burke, a white real 
estate broker, and had made threats to sell his property 
to Negroes. (Bee. 17-18.)

The complaint further alleged that the several plaintiffs 
(respondents herein) were parties to and signers of the 
alleged restrictive agreement; that they were the several 
owners of certain properties in said area and further, 
that their real estate would be irreparably damaged by 
reason of the violation of the agreement.

The plaintiffs sought a temporary injunction which 
petitioners resisted by motions to strike the complaint and 
dismiss the suit (Bee. 22-28) and by oral argument in 
support thereof.

On July 8, 1937, Judge Michael Feinberg, to whom the 
cause was then referred, entered a temporary mandatory 
injunction over objections of petitioners, requiring the 
Hansberrys to move from the premises at 6140 Bhodes 
Avenue, and ordering also a writ of assistance to issue 
upon failure of said Hansberrys to move from said prem­
ises. (Bee. 28-32.) Said order of injunction likewise found 
that the Hansberrys were unlawfully in title to the afore­
said premises at 6140 Bhodes Avenue (Bee. 31), although 
said cause had not been heard upon the merits, and 
although said case was not at issue on the pleadings. 
The defendant Katz was likewise enjoined from selling 
or leasing his property to colored people. (Bee. 30.)

The defendants filed their several and respective sworn 
and verified answers (Bee. 32-48, 56-58, 78-91) categorically 
and specifically denying the allegations of the complaint as 
to the charges of conspiracy, and denied that the owners 
of 95% of the frontage described in the restrictive agree­
ment had signed the agreement and asserted that the 
agreement never went into force or effect. The defend­



5

ants in their answers (Eec. 32-48, 56-58, 78-91) likewise 
set up several affirmative defenses contending that the 
alleged restrictive agreement was invalid and void, was an 
unlawful restraint on alienation, was also against the pub­
lic policy of the State of Illinois and the United States of 
America, and that the enforcement of the restrictive agree­
ment by the courts of the State of Illinois, would deprive 
the defendants of their liberty, their freedom of contract, 
their rights and their property without due process of 
law, and would likewise deprive the defendants of the 
equal protection of the law, and would abridge the priv­
ileges and immunities of the defendants as citizens of the 
United States of America, in violation of the 14th Amend­
ment to the United States Constitution. (Eec. 32, 40-42, 
47, 56, 86-88.)

The defendants in their several and respective answers 
(Eec. . . ) ,  likewise denied that the alleged restrictive 
agreement was a covenant running with the land, but as­
serted was a covenant against persons merely on account 
of their race and color. Defendants further denied that 
plaintiffs were bringing a representative suit, and stated 
that there had been such a change in the character of 
the neighborhood that it would be inequitable to enforce 
any such alleged agreement. The defendant, Katz, denied 
the execution and acknowledgment of the agreement and 
stated under oath that his signature to said alleged agree­
ment had been obtained by fraud and trickery. (Eec. . ..)

After the filing by the defendants of their several 
answers, motions to dissolve (Eec. 48-50, 58) were filed 
by them, together with affidavits (Eec. 50, 58) supporting 
denial of the execution of the agreement and compliance 
with conditions precedent contained in said agreement. 
To the defense that the agreement was never executed, 
plaintiffs replied that that question was res judicata (Bee.



6

60-61) having been determined in the ease of Burke v. 
Kleim an, No. 567687, in the Superior Court of Cook 
County, Illinois. The chancellor, Judge George Bristow, 
reserved rulings on the motion to dissolve of the defend­
ants and the plea of res judicata  until a hearing on the 
merits. (Rec. 75-76.) The defendants filed additional 
pleadings called rejoinders (Rec. 72-75, 91-101), denying 
the rights of the plaintiffs to plead estoppel by verdict, 
or res judicata  and denying that the case or decree of 
Burke v. Kleim an  could be lawfully raised as estoppel 
by judgment or as res judicata  and stating that the 
application of res judicata  would deprive them of 
their rights and property without due process of 
law, in violation of the 14th Amendment to the 
Federal Constitution. A t the close o f  the evidence, 
the chancellor found that the owners o f only about 54%  
of the fron tage had signed the agreem ent, which agree­
ment itse lf contained the condition precedent that it should 
be o f no fo rce  or effect unless signed by the owners of 
95% o f the fron tgge, but the chancellor in spite of his 
finding that the agreement was invalid by its own terms, 
and had never come into effect, nevertheless, “ reluctant­
ly ”  held the question of the execution and validity of 
the agreement was res judicata  by virtue of the decree 
in Burke  v. Kleimam-, and further held Burke  v. Kleim an  
to be a representative suit binding upon the petitioners 
in the instant case. (This case of Burke v. Kleim an  was 
affirmed in 1934 by the Appellate Court of Illinois and 
reported in Vol. 277 at page 519, 189 N. E. 3/2.)

Notwithstanding the decree, the trial chancellor in his 
formal opinion (Rec. 266-269) rendered at the close of the 
case, used the following language: “ In other words, there 
is an invalid agreement which is now sought to be en­
forced. And the answer that the plaintiffs make to that



7

contention is not to try to show that it was properly 
signed by the requisite number of property owners, but 
that its validity has already been sustained by several 
courts. * * * We have a man named Burke, whose per­
sonality and activity enter into the picture. It is urged, 
and I think with a good deal of merit, that the lawsuit 
[Burke v. Kleinian) which he brought to test out the 
validity of the agreement was more or less a dummy 
proceeding, of which can be easily seen that although it 
appears on the face of which to he representative and 
class in its character, still it (Burke v. Kleiman) was 
conceived by him and prosecuted by him for the sole 
purpose of establishing the integrity and invulnerability 
of the district that is under the covenant; in other words, 
to make it unassailable. * * * And he in effect, says 
through himself and through those he was working with 
to bring about the destruction of this agreement, he says 
in effect that, lawsuit (Burke v. Kleiman) that I brought 
was a fraud, and I had no authority to represent the 
class, and I was not representing the class. It was my 
own personal lawsuit. I  obtained the stipulation of the 
facts that the agreement contained the signatures of more 
than 95% of the frontage, and that was all a fraud; and 
we know it was a fraud because the proof now shows 
that there wasn’ t 95% . * * * He committed a fraud when 
he brought this lawsuit. (Burke v. Kleiman.)

The following are the material and pertinent facts in 
respect to the proceedings and the decree of Burke v. 
Kleiman (Rec. 312-354) pleaded by respondents as res 
judicata:

In October, 1932, Olive Ida Burke (wife of James J. 
Burke, one of the petitioners herein), owning a parcel 
of property at 6039 Vernon Avenue, Chicago, filed a suit 
in equity (Rec. 312), purportedly on her own behalf and



8

on behalf of all other property owners adversely af­
fected by violation of the agreement thereinafter men­
tioned) against Isaac Kleiman, owner of the premises at 
417 East 60th Street, Chicago, Illinois (not the property 
in the instant case), Samuel Kleiman, owner of a mort­
gage note on said premises, Charles Sopkins, Trustee 
for the benefit of the owner of the mortgage note, and 
James Lowell Hall, a Negro tenant in said building, to 
enforce specifically by injunction, the same agreement 
sought to be enforced in the instant case.

No testimony was taken or proof adduced showing that 
the required frontage consent of 95% had ever been ob­
tained, but a stipulation was signed by the attorney for 
Olive Ida Burke and by Charles J. Sopkins, an attorney 
who purported to act for himself and the other defend­
ants. (Bee. 65, 339-349.) It was stipulated by the attorneys 
m erely, that 95% o f the otvners o f the p roperty  in said 
restricted  area had signed, sealed and acknowledged said 
agreem ent (not the owners of 95% of frontage as re­
quired on the agreement) and that it was in full force 
and effect. (Bee. 65, 339.) A decree was entered in Octo­
ber, 1933, declaring said restrictive agreement to be in 
full force and effect and that it was a covenant running 
with the land and binding upon the defendants in that 
suit (Bee. 338-353), but the Court did not find that it was 
a representative suit.

There were no other p rop erty  owners or signers made 
parties defendant in the case o f  Burke v. Kleiman. The 
only property owners being Olive Ida Burke and Isaac 
Kleiman. The only p rop erty  involved was the p roperty  
o f Isaac K leim an at 417 East 60th S treet, which was the 
only parcel over which the court had jurisdiction. Neither 
the petitioners nor any of their grantors were made par­
ties to the proceeding of Burhe v. K leim an , There was



9

no notice by publication or otherwise given to any of the 
other 500 or more property owners or signatories to the 
said alleged restrictive agreement. The case was merely 
one where one property owner, not a signer of the re­
strictive agreement, was suing other property owner, not 
a signer of the agreement, to enforce the restrictive 
agreement.

Burke, former President of the Woodlawn Property 
Owners Association which filed the Burke v. Kleiman case 
charged in his answer (Rec. 44-46) that the invalidity of 
the agreement was known to the Association at the time 
the several suits were conducted by it to enforce the 
agreement, which allegations were never rebutted by the 
plaintiffs in the instant suit.

In the Burke v. Kleiman case, the execution and validity 
of the agreement were not put in issue by the answers 
(Rec. 330-337) of the several defendants therein but their 
answers were confined to the sole unsubstantial and friv­
olous defense that violations in respect to 3 or 4 parcels 
included in an agreement covering 500 or more parcels 
constituted a change in the character of the neighborhood 
so as to make it inequitable to enforce the covenant. 
(Rec. 330-337.)

In the instant case, Isaac Kleiman and James Lowell 
Hall, parties defendant in the case of Burke v. Kleiman, 
both appeared and testified that they had not employed 
or authorized any lawyer to represent them in the case 
of Burke v. Kleimcm, nor did they have any knowledge 
of any stipulation of facts, nor had they authorized its 
signing. (Rec. 237-238.) The chancellor in the instant 
case, after competent proof, found that the stipulation 
was a false stipulation, and that the case and proceedings 
of Burke v. Kleiman were collusive and fraudulent, and



10

that the whole case was tainted with fraud. (Rec. 267- 
268.) The affidavit (Rec. 283-286) executed by Fred L. 
Helman, the individual who attempted to create the restric­
tive agreement, shows that as early as February 1 , 1929, 
which was three and a half years prior to the filing of the 
suit of Burke v. Kleinian, it was known by the Woodlawn 
Property Owners Association and its officials of which 
said Fred L. Helmcun was the Executive Secretary, that 
the alleged restrictive agreement was invalid according 
to its own terms, because the required frontage consent 
had not obtained. (Rec. 284-286.) The record shows that 
the same Fred L. Helman, as Notary Public, took the ac­
knowledgment of Olive Ida Burke to the complaint in the 
case of Burke v. Kleinian. (Rec. 329.) Helman’s affidavit 
(Rec. 284-286) shows that it was known, at the time of the 
filing of said suit (October, 1932) by him and other officials 
of the Woodlawn Property Owners Association, that said 
restrictive agreement was invalid and had never come 
into force and effect according to its own terms, and that 
this knowledge was acquired three and a half years prior 
thereto.

Helman’s affidavit (Rec. 286) likewise shows that he 
conferred with various officials of the Woodlawn Prop­
erty Owners Association in regard to the filing of said 
case of Burke v. Kleiman, and that be directed or caused 
to be paid to the attorneys representing Olive Ida Burke, 
the court costs for the filing of said case, and that he 
generally supervised the prosecution of said case up to 
year 1933 Avhen he severed his connection. (Rec. 286.)

The decree in Burke v. Kleiman makes no mention of 
any representative or class suit. (Rec. 338-353.) Nor does 
the Appellate Court on Appeal make any reference to 
its being a representative or class suit. (277 111. App. 
519, 189 N. E. 372.)



11

Iii spite of the finding that the case and proceedings in 
Burke v. Kleiman were tainted with fraud and collusion, 
Chancellor Bristow, nevertheless reluctantly sustained 
the plaintiffs’ plea of res judicata (Bee. 119) and there­
upon in his decree (Bee. 102-125) sustained the objections 
of the plaintiffs to the defendants’ answers (Bee. 122) 
and proceeded to declare the conveyance to the Hans- 
berrys, void, and directed that upon the failure of the 
Hansberrys to convey their property to a white person, 
that a Master in Chancery of the court convey the same 
to Jay B. Crook, but said decree (Bee. 123) in no manner 
whatsoever provided for compensation to the Hansberrys. 
The chancellor enjoined Burke from selling or leasing 
any real estate within the alleged restrictive area to 
Negroes or to white persons for the purpose of selling 
or leasing to Negroes; enjoined Katz from selling or 
leasing his building at 6018 Vernon Avenue to Negroes; 
enjoined Pace and the Supreme Liberty Life Insurance 
Company from making any further loans on the real estate, 
in the restricted area.

Inasmuch as a free hold was involved, the petitioners 
appealed directly to the Supreme Court of Illinois, being 
the highest court of the State.

n.
JUBISDICTIONAL STATEMENT.

1. The jurisdiction of this court is based upon Section 
237b of the Judicial Code as amended by the Act of 
January 13, 1925; Volume 8, Fed. Code Annotated (FCA), 
Title 28. Judicial Code, Section 344b.

The Supreme Court of Illinois, on October 10, 1939, 
by a divided court, affirmed the judgment or decree of



12

the Circuit Court of Cook County, Illinois, in favor of 
the respondents herein and against the petitioners. (Volume 
372 HI., page 369, 24 N. E. (2d) 37.) Petition for re­
hearing was later filed by petitioners within the time 
allowed by the rules of the Supreme Court of Illinois 
on the 4th day of November, 1939 (Eec. 475), and after­
wards was denied on December 13, 1939, and this petition 
for certiorari is now filed within three months after the 
denial of the petition for rehearing in the Supreme Court 
of Illinois.

The affirmance of the decree of the trial court in 
its wrongful application of the doctrine of res judicata 
denied the petitioners notice and a real opportunity to 
appear, to be heard, and to defend, and violated the 
petitioners’ rights to due process of law under the 14th 
Amendment to the Federal Constitution under which 
Amendment the petitioners specially set up and claimed 
certain rights, titles, privileges and immunities. See 
Postal Cable Telegraph Co. v. Newport, 247 U. S. 464 
at 475; 38 S. Ct. 566, 62 L. Ed. 1215; Wabash Railway 
Co. v. Adelbert College, 208 U. S. 38 at 57-58 and 59, 28 
S. Ct. 182, 52 L. Ed. 379; Hartford Life Ins. Co. v. Ibs, 
237 U. S. 662 at 671; Smith v. Swormstedt, 16 Howard 
288 at 303; Hamer v. New York Railways Co., 244 U. S. 
266 at 273; Brinkerhoff-Faris Trust & Savings Co. v. 
Hill, 281 U. S. 673 at 682; Scott v. Donald, 165 U. S. 
107 at 115 to 117; Pennoyer v. Neff, 95 U. S. 714 at 733; 
Scott v. McNeal, 154 U. S. 34 at 45 and 46; Williams v. 
Gibbes, 17 Howard 239 at 254, 257; Simon v. Craft, 182 
U. S. 437; Ward v. Board of County Commissioners, 253 
U. S. 17 at 22; Chase National Bank v. Norwalk, 291, 
431 at 438; Windsor v. McVeigh, 93 U. S. 274 at 277; 
Earle v. McVeigh, 91 U. S. 503.



13

The affirmance of the decree of the trial court neces­
sarily deprived the Hansberrys of their rights and prop­
erty without due process of law in violation of the 14th 
Amendment to the Federal Constitution because no com­
pensation was provided for them in or by said decree 
thereby amounting to a spoliation and said Hansberrys 
specially set up and claimed rights, privileges, titles and 
immunities as citizens of the United States of America 
under Section One of the 14th Amendment to the Fed­
eral Constitution which was thereby drawn in question; 
and moreover the said Hansberrys, petitioners, were de­
nied due process of law and the equal protection of the 
laws, and their rights, privileges, and immunities as citi­
zens of the United States were abridged. See Delmar 
Jockey Club in Missouri, 210 U. S. 324 at 335.

The petitioners set up and claimed specially under the 
14th Amendment to the Federal Constitution certain 
rights, titles, privileges and immunities which they as­
serted were denied and abridged by the enforcement, by 
the State’s Judicial officers and courts, of a harsh, op­
pressive and discriminatory property OAvner’s covenant, 
and the 14tli Amendment to the Federal Constitution was 
thereby necessarily drawn in question by the decree and 
judgment of the Illinois Supreme Court in sustaining 
the lower court’s decree. See Chicago, Burlington & Quincy 
B. B. Co. v. Chicago, 166 U. S. 226 at 233-35; Home Tele­
graph, etc. v. Los Angeles, 227 U. S. 278; Ex parte Vir­
ginia, 100 U. S. 339; Strauder v. West Virginia, 100 U. S. 
303; Carter v. Texas, 177 U. S. 442; Colgate v. Harvey, 
296 U. S. 404, at 430-433.

The petitioners’ rights to due process of law were 
denied and abridged by the affirmance of the decree of 
the trial court Avliich reluctantly held that Burke v. Klei-



14

mam, though a fraudulent and collusive suit, was res 
judicata and therefore binding upon the petitioners in 
the instant case. See Lord v. Veazie, 8 Howard 251 at 
255; Michaels v. Post, 21 Wall. 298; Beale v. III. M. & 
T. B. Co., 133 U. S. 290; Riehle v. Margolies, 279 U. S. 
219.

The rights of the petitioner Katz to due process of law 
were denied and abridged in that the decree enjoined 
said Katz without any evidence whatsoever in support 
of said injunction so that said decree amounted to an 
arbitrary and capricious judicial seizure of Katz’ prop* 
erty. See Delmar Jockey Club v. Missouri, 210 U. S. 
324 at 335; Norris v. Alabama, 294 U. S. 578 at 590; 
Creswill v. Knights of Pythias, 225 U. S. 246 at 261; 
Truax v. Corrigan, 257 U. S. 312 at 324-5.

The petitioners’ rights to due process of law were de­
nied and abridged in that the decree of Burke v. Kleiman, 
a void judgment, or decree was pleaded and sustained 
as res judicata against them. The decree in the instant 
case found that Burke v. Kleiman was a class suit and 
therefore binding upon the petitioners herein, although no 
class in fact ever existed, as shown by the finding of the 
trial chancellor both in his oral opinion and decree that 
the agreement sought to be specifically enforced was 
executed by 54% of the frontage instead of 95%, as 
required by its own terms. The court in Burke v. Klei­
man lacked jurisdiction of the parties and the subject mat­
ter because the agreement sought to be enforced had 
never become operative by its own terms. See Christopher 
v. Brussellback, 302 U. S. 500; Old Wayne Life A ss’n 
of Ind. v. McDonough, 204 U. S. 8 at 15-17, 23; Scott v. 
McNeal, 154 U. S. 34 at 45, 46.

The petitioners raised the Federal questions sought



15

to be reviewed by filing their several and respective mo­
tions to strike and dismiss the respondents’ suit, in which 
they contended that the enforcement of the restrictive 
agreement violated the 14th Amendment and Sections 
1977 and 1978 of the Revised Statutes and was contrary 
to the aims, purposes and objects as expressed in the 
Federal Constitution. (Rec. 22-28.) The trial court over­
ruled the petitioners’ several and respective motions to 
strike and dismiss. (Rec. 29.)

The petitioners then filed their several and respective 
answers, setting up the same Federal questions. (Rec. 
32-47, 56-58, 78-91.) The petitioners likewise filed their 
several and respective motions to dissolve (Rec. 48-50), 
again asserting the Federal questions sought to be re­
viewed here. To the defendants’ plea of res judicata 
raised in their reply, the defendants filed their several 
and respective rejoinders to said reply, denying that they 
had been estopped upon the basis of said decree of Burke 
v. Kleiman, and further asserted that the sustaining of a 
plea of res judicata and any estoppel against them would 
deny them of due process of law and the equal protection 
of the laws in violation of the 14th Amendment. (Rec. 
72-75, 91-101.)

The trial chancellor in his decree (Rec. 102-125), sus­
tained the plea of res judicata in the reply and sustained 
the objections to the defendants’ answers in which they 
had asserted the Federal Constitutional questions above 
set up. (Rec. 119, 121-122.)

Upon the trial of the cause the defendants objected to 
the introduction of Plaintiffs’ Exhibit No. 5 (Rec. 197- 
201, 451-461) (which was the alleged restrictive agree­
ment), on the Federal grounds above asserted. The trial 
court overruled said objections and allowed the introduc­
tion of the said restrictive agreement in evidence against



16

the petitioners. (Rec. 200-201.) The trial court in its de­
cree found that the enforcement of the restrictive agree­
ment did not violate any article of the Constitution of the 
United States and is not unconstitutional; that it was not 
against public welfare; that it did not deprive the peti­
tioners of any of their equal or civil rights nor did it 
deprive the petitioners or Negroes as a class, of due 
process of law under the Federal Constitution, and then 
proceeded to sustain the plea of res judicata as well as 
the objections of the plaintiffs to the answer of the peti­
tioners. (Rec. 121-122.)

The petitioners again raised the above mentioned Fed­
eral Constitutional questions in their appeal to the Su­
preme Court of Illinois, and as provided in the rules 
of the Supreme Court of Illinois, assigned these errors 
in a portion of their brief entitled “ Errors relied upon 
for reversal” . The petition for rehearing in the Supreme 
Court of Illinois, raised the same Federal Constitutional 
question.

The affirmance by the Supreme Court of Illinois, of the 
decree of the trial chancellor who bad ruled adversely 
on the Federal Constitutional questions raised by the peti­
tioners, necessarily involved substantial Federal ques­
tions, the disposition of which were necessary to a de­
termination of the case.

nx
QUESTIONS PRESENTED.

1. Assuming that there is a property owners’ agree­
ment among 500 or more different property owners o w ­
ing 500 or more different and dissimilar parcels of real 
estate whereby the sale and leasing of real estate to



17

Negroes is prohibited solely on account of their race or 
color, and assuming also that one property owner sues 
another property owner for specific performance of said 
restrictive agreement in respect to one parcel of property, 
and said suit shows on its face that there is a dispute, 
conflict of interest, and diversity of opinion in respect 
to its enforcement, can such a suit, wherein one property 
owner sues another to the injury and detriment of the 
latter, be a class or representative action so that the 
decree in the first suit will thereafter in a second suit 
between still different property owners, estop, hind and 
conclude persons and their privies, not parties to or 
served with summons or process, on the theory of res 
judicata?

(a) Where a decree finds a property owners’ cove­
nant to be in full force and effect on the basis of a false 
stipulation of facts, and in a second suit involving the 
same property owners’ covenant, it is proved beyond 
any question of doubt that such covenant never came into 
being or force or effect and was invalid according to 
its own terms because the required frontage consent 
had never in fact been obtained, can such a decree be 
res judicata on the theory that the first action was a 
representative or class suit, when in truth and in fact 
no class ever existed, there being no covenant in fact? 
And did the court in said first suit ever have jurisdiction 
to bind any person, especially persons and their privies 
not parties and not served with summons and process?

2. Whether the proceedings, suit and decree in the 
case of Burlce v. Kleiman found by the trial chancellor 
in the instant case to have been collusively and fraudu­
lently brought and obtained may be pleaded as res 
judicata.



18

3. Whether the enforcement, by the State courts, by 
means of a mandatory injunction, of a harsh, oppressive 
and discriminatory restrictive agreement among property 
owners wherein Negroes are prohibited from owning and 
occupying real estate solely on account of their race or 
color, deprives the petitioners of due process of law, the 
equal protection of the laws, and likewise abridges their 
privileges and immunities as citizens of the United States 
in violation of the 14th Amendment to the Federal Con­
stitution, and is in further violation of Secs. 1977 and 1978 
of Revised United States Statutes; and whether such en­
forcement is contrary to the natural and inalienable rights 
of petitioners as citizens of the United States under the 
14th Amendment.

4. Whether the decree which directed the Hansberrys 
to convey their three-apartment building at 6140 Rhodes 
Avenue to a white person within thirty days, and upon 
failure so to do, directed a Master in Chancery of said 
court to convey the same to Jay B. Crook, a white per­
son, without providing for compensation to said Hans­
berrys (and said decree being actually executed by said 
Master in Chancery), is so plainly arbitrary, contrary to 
law and capricious as to amount to a mere spoliation of 
said petitioners and the taking of their property without 
due process of law in violation of the 14th Amendment 
to the United States Constitution.

5. Whether the decree enjoining Israel Katz, which 
was entered without any evidence whatsoever, is so plainly 
arbitrary and contrary to law, as to amount to a mere 
spoliation of the petitioner Katz, and a capricious and 
arbitrary judicial seizure of his property and a denial of 
his rights without due process of law in violation of the 
14th Amendment to the Federal Constitution.



19

6. Whether the decree in enjoining Supreme Liberty 
Life Insurance Company, mortgagee, and Harry H. Pace, 
sued as its president, from making mortgage loans in 
said restricted area, although the agreement sought to 
be enforced expressly exempted mortgages from its 
operation, is so plainly arbitrary, unreasonable and con­
trary to law as to amount to a spoliation of the petition­
ers, Supreme Liberty Life Insurance Company and Harry
H. Pace, its president, and a deprivation of their rights 
and property without due process of law in violation of 
the 14th Amendment to the United States Constitution.

IV.

SEASONS RELIED FOR THE ALLOWANCE OF THE 
WRIT OF CERTIORARI.

1. The decision of the Supreme Court of Illinois in af­
firming the decree of the court below, is probably not in 
accord with the following applicable decision of this 
Court:

Wabash Railway Co. v. Adelbert College, 208 U.
S. 38 at 57, 59.

Hartford Life Ins. Co. v. Ibs. 237 U. S. 662 at 
617.

Hamer v. New York Railways Co., 244 U. S. 266 at 
273.

Christopher v. Rrusselback, 302 U. S. 500.
Smith v. Swormstedt, 16 Howard 288 at 303.
Scott v. Donald, 165 U. S. 107, at 115-117.
Postal Telegraph Cable Co. v. Newport, 247 U. S. 

464 at 475.
Rrinkerhoff-Paris Trust & Savings Co. v. Hill, 

281 U. S. 673 at 682.
Matthews v. Rodgers, 284 U. S. 521 at 529-30.
Williams v. Gibbs, 17 Howard 239 at 254-7.



20

Boswell v. Otis, 9 Howard 336 at 348.
Scott v. McNeal, 154 U. S. 34 at 45, 46.
Pennoyer v. Neff, 95 U. S. 714 at 727, 733.

The decision of the Supreme Court of Illinois in holding 
that the property owners agreement among 500 or more 
different property owners owning 500 or more different 
and dissimilar parcels of property was a proper subject 
matter of a representative or class action is not in ac­
cord with the decision of this court in Wabash Railway 
Co. v. Adelbert College, supra; Hartford Life Ins. Go. 
v. Ibs; Hamer v. New York Railways Co. supra, which 
hold that there must be some common subject matter and 
identical interest, and that in order to have a class suit, 
some member of the class must be suing or defending on 
behalf of all the members of the class, and further, that' 
one member of a class cannot sue those whom he pur­
ports to represent in a class suit. The decision of the 
Supreme Court of Illinois in sustaining a plea of res 
judicata against the petitioners is not in accord with the 
decision of this court in Postal Telegraph Cable Go. v. 
Newport, supra, which holds that the doctrine of res judi­
cata cannot he invoked against persons and their privies 
who have not been served with process or summons and 
who have not had their day in court and a real oppor­
tunity to defend.

(a) In holding Burke v. Kleiman to be a representa­
tive suit or class action and the decree therein to be res 
judicata against petitioners when in truth and in fact 
there wtas no valid agreement according to its own terms, 
the Supreme Court of Illinois decided the case in a way 
not in accord with the decision of this court:

See:
Mattheivs v. Rodgers, supra.
Christopher v. Brusselback, 302 U. S. 500. 58 

Set. 350.



21

Scott v. McNeal, supra, Hovey v. Elliot, 167 U. S. 
409, 17 Set. 841.

Simon v. Southern Ry. Co., 236 U. S. 115 at 
122, 132.

Old Wayne Mutual Life A ss’n of Ind. v. Mc­
Donough, 204 U. S. 8 at 15-17, 23.

There was no jurisdiction to hind the petitioners and 
their privies not parties and not served with process, and 
there being no agreement and therefore, no class, the 
decree in Burke v. Kleiman was therefore void.

See:
Christopher v. Brusselback, 302 U. S. 500. 
Matthew v. Rodgers, supra.
Scott v. Donald, 165 U. S. 115-117.
Scott v. McNeal, supra.
Hovey v. Elliot, supra.
Simons v. Southern Ry. Co., supra.
Old Wayne Mutual Life A ss’n of Ind. v. Mc­

Donough, 204 U. S. 8 at 15-17, 23.

2. The decision of the Supreme Court of Illinois in 
sustaining a plea of res adjudicata based on the fraudulent 
decree of Burke v. Kleiman is not in accord with the 
applicable decisions of this court:

See:
Lord v. Veazie, 8 Howard 251 at 255.
Michaels v. Post, 21 Wall. 398,

which hold that a fraudulent and collusive decree and 
judgment may be attacked collaterally.

See:
Beals v. III. M. & T. R. Co., 133 U. S. 290.
Riehle v. Margolies, 279 U. S. 218.

3. In enforcing the restrictive agreement the State 
court and State judicial officers have deprived the peti­
tioners of their rights and property without due process



22

of law, and abridged their privileges and immunities as 
well as denied them the equal protection of the laws in 
violation of the 14th Amendment in a manner probably 
not in accord with the applicable decisions of this court 
in the following cases:

Chicago Burlington Quincy R. Co. v. Chicago, 
166 U. S. 226 at 233-235.

Home Telegraph Etc. v. Los Angeles, 227 U. S. 
278.

E x parte Virginia, 100 U. S. 339.
Strauder v. West Virginia, 100 U. S. 303.
Neal v. Delaware, 103 U. S. 370.
Carter v. Texas, 177 U. S. 442.

In enforcing the harsh, oppressive and discriminatory re­
strictive agreement, the Supreme Court of Illinois 
abridged the privileges and immunities of petitioners as 
citizens of the United States in violation of the 14th 
Amendment and Sections 1977 and 1978 in a manner not 
in accord with the applicable decision of Colgate v. Har­
vey, 296 U. S. 404 at 430-433, wherein the Supreme Court 
of the United States held that citizens of the United States 
by virtue of their National Citizenship derived under the 
14th Amendment have the privilege and immunity of 
buying, selling and contracting for property without dis­
crimination.

4. In affirming the decree which took the Hansberry’s 
property without compensation, the Supreme Court of 
Illinois probably decided the case in a manner not in 
accord with an applicable decision of this court: Delmar
Jockey Club v. Missouri, 210 U. S. 324 at 335, in which 
the court held that a decree which is so arbitrary and so 
contrary to law as to amount to a spoliation, deprives a 
litigant o f his property without due process of law in 
violation of the 14th Amendment.



23

5. In affirming the decree enjoining Katz, the Supreme 
Court of Illinois decided the case in a manner not in ac­
cord -with the case of Delmar Jockey Club v. Missouri, 
supra, and probably not in accord with the cases of Norris 
v. Alabama, 294 U. S. 578; Cresivell v. Knights of Pythias, 
225 U. S. 246 at 261; Truax v. Corrigan, 257 U. S. 312, 
324-5, which hold that where findings of fact are made 
without any evidence whatsoever to support them the 
Federal right has nevertheless been denied and this court 
must examine the facts to determine whether the Federal 
right has been denied.

6. In deciding that the enforcement of the harsh, op­
pressive and discriminatory restrictive agreement is not 
against the general welfare of the Nation and not con­
trary to the aims, purposes and objects of the Federal 
Government, the Supreme Court of Illinois has decided a 
Federal question of substance not heretofore decided by 
this court. See Colgate v. Harvey, 296 U. S. 404.

7. In affirming the decree enjoining Supreme Liberty 
Life Insurance Company, mortgagee, and Harry H. Pace, 
sued as its president, from making mortgage loans in said 
restricted area, the Supreme Court of Illinois denied the 
case in a manner not in accord with the case of Delmar 
Jockey Cluh v. Missouri, supra, in that the said decree as 
to these petitioners was so contrary to law and so mani­
festly unreasonable and arbitrary as to amount to a 
spoliation in that it prevented them from making mort­
gage loans in said area and obtaining earnings from 
mortgage investments, although the agreement itself ex­
pressly exempted mortgagees from its operation.

8. In deciding that a property owner’s restrictive agree­
ment may be the subject matter of a class or representa­



24

tive suit, which may be used as res judicata against per­
sons not parties or privies and not served with summons 
or process, the Supreme Court of Illinois has decided a 
Federal question of substance not yet decided by this 
court. The necessary effect of the decision of the Su­
preme Court of Illinois will be to unsettle and to cloud a 
great part of the land titles in Illinois and many states 
of the Union. Collusive and fraudulent suits will be en­
couraged and all of the ancient rights of due process will 
be destroyed by the resort to the technical doctrine of 
res judicata which will foreclose every one of his light 
and opportunity to be heard. See Lord v. Veasie, 8 How­
ard, 251 at 255; Geter v. Hewitt, 22 Howard 364. I f the 
decision is allowed to stand, no person, black or white, 
will be safe in his person, property or his rights. I f class 
suits can be maintained in respect to property owners’ 
covenants involving many parcels of property, then some 
property owners will thus be enabled to destroy the prop­
erty rights o f others while thus purporting to represent 
them in the class suit and while they are not parties and 
are without an opportunity to defend.

This court has not yet decided whether the right to own 
and hold property is a natural and inalienable right, 
privilege and immunity of a citizen of the United States 
by virtue of National citizenship and a right which may 
not be abridged and denied by the judicial recognition 
and judicial action of the State Courts in enforcing dis­
criminatory agreements which would deny the natural and 
inalienable right of a citizen to own and hold property.

W herefore, it is respectfully submitted that this peti­



25

tion for certiorari to review the judgment and decree of 
the Supreme Court o f Illinois, should be granted.

C a r l  A. H a n s b e r r y ,
N a n n ie  L . H a n s b e r r y ,
S u p r e m e  L ib e r t y  L if e  I n s u r ­

a n c e  C o m p a n y ,
H a r r y  H . P a c e ,
J a m e s  J . B u r k e ,
I s r a e l  K a t z .

E a r l  B . D ic k e r s o n ,
T r u m a n  K. G ib s o n , Jr.,
C. F r a n c is  S t r a d fo r d ,
L o r in g  B . M o ore ,
I r v in  C. M o l l is o n ,

Attorneys for Petitioners.



26

BRIEF IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI TO THE SUPREME COURT 

OF ILLINOIS.

O p i n io n  o f  C o u r t  B e l o w . 

(Majority and Dissenting Opinion.)

The opinion of the Supreme Court of Illinois is re­
ported in 372 111., page 369, of the Illinois Reports, and 
also in 24 N. E. 2nd, page 37, as well as in the record 
filed in this cause. (Rec. 464, 469.)

JURISDICTION.

1. The jurisdiction of this court is based upon judicial 
code Section 237b as amended by the Act of February 13, 
1925. Federal Code Annotated, Title 28, Yol. S, page 
44, Section 344b.

2. The original date of the judgment or decree to be 
reversed, is October 10th, 1939. (Rec. . .) Petition for 
rehearing was filed November 4th, 1939, within the time 
provided by the rules of the Supreme Court of Illinois, 
and the petition for rehearing was denied December 13, 
1939. (Rec. . . )

3. The 14th Amendment to the Constitution of the 
United States, Sections 1977 and 1978 of the Revised 
United States Statutes, and the Preamble and the Bill of 
Rights to the Federal Constitution were drawn in ques­
tion by the petitioners who specially set up and claimed 
rights, privileges and immunities thereunder, which were 
denied by the courts below in various rulings.



27

STATEMENT OF THE CASE.

The essential facts of the case are fully stated in the 
accompanying petition for certiorari, which also contains 
a full statement of the questions presented, and in the 
interest of brevity are not repeated here. Any necessary 
elaborations on the evidence on the points involved will 
be made in the course of argument which follows.

SPECIFICATIONS OF ERRORS.

The Supreme Court of Illinois erred:
1. In affirming the decree of the Circuit Court, of Cook 

County, Illinois, which found the case of Burke v. Klei­
nian to he a representative or class action, and in sus­
taining said decree as res judicata against the petition­
ers in the instant case.

(a) In affirming the decree of the Circuit Court of 
Cook County, Illinois, which found that Burke v. Klei- 
man was a class suit, although it found also that there 
never was a valid agreement and never in fact any class, 
and as a consequence, erred in sustaining the plea of res 
judicata on the basis of the decree of Burke v. Kleiman.

(b) And erred in not finding that the decree of Burke 
v. Kleiman was fraudulent, void, and entered without jur­
isdiction to bind any of the parties thereto or the peti­
tioners.

2. In sustaining the plea of res judicata upon the basis 
of a decree and proceedings fraudulently and collusivelv 
brought and obtained.

3. In enforcing the harsh, oppressive and discrimina­
tory restrictive agreement in deprivation of the petition­
ers’ rights and property without due process of law,



28

thereby denying the equal protection of the laws and 
abridging their privileges and immunities in violation of 
the 14th Amendment to the United States Constitution.

4. In enforcing the restrictive agreement against the 
petitioners in violation of Section 1977 and 1978 of the 
Revised United States Statutes.

5. In affirming the decree which deprived the Uans- 
berrys of their property without compensation, in viola­
tion of their rights to due process of law under the 14th 
Amendment to the Federal Constitution.

6. In affilining the decree enjoining Israel Katz in an 
arbitrary and capricious manner, and without any evi­
dence whatsoever, in deprivation of his rights and prop­
erty without due process of law in violation of the 14th 
Amendment to the Federal Constitution.

7. In affirming the decree which enforced a harsh, op­
pressive and discriminatory restrictive agreement, which 
is against the public policy of the United States as ex­
pressed in Sections 1977 and 1978 of the Revised United 
States Statutes, the Federal Bill of Rights and the 14th 
Amendment, and which is like vise contrary to the natural 
and inalienable rights of the petitioners as citizens of the 
United State's, contrary to the general welfare, and con­
trary to the aims, purposes and objects and the Federal 
Constitution as expressed in its preamble to the 14th 
Amendment.

8. In affirming the decree enjoining Supreme Liberty 
Life Insurance Company, mortgagee and Harry H. Pace, 
sued as its president from making mortgage loans in said 
restricted area, although the agreement sought to be en­
forced expressly exempts mortgagees from its operation.



29

SUMMARY OF THE ARGUMENT.

I. A property owner’s restrictive agreement between 
500 or more different owners owning 500 or more differ­
ent and dissimilar parcels of real estate cannot be the 
subject matter of a class or representative suit, there be­
ing no common subject matter and no identity of interest 
among1 them. The case of Burke v. Kleiman in which one 
property owner was suing another property owner to the 
injury and detriment of the latter and where there was 
a dispute, conflict of interest and diversity of opinion as 
to the enforcement of the agreement "was not a represen­
tative or class suit, and the decree therein could not bind 
the privies or the petitioners herein who were not parties 
and not served with process or summons, on the theory 
of res judicata.

A. The decree enjoining Supreme Liberty Life Insur­
ance Company, as mortgagee and Harry H. Pace, sued 
as its president was manifestly erroneous and so unrea­
sonable and arbitrary as to deny these petitioners of their 
rights and property without due process of law, particu­
larly in that the agreement sought to be enforced specifi­
cally exempted mortgagees from its operation.

B. The decree in Burke v. Kleiman could not be res 
judicata as to petitioners and their privies not parties to 
nor served with process therein, because there was no 
existing class, it having been proved in the instant case 
that there was no agreement in fact among the property 
owners, and as a consequence the court did not have juris­
diction to bind any one, and especially not the petitioners



so
and their privies who were not parties and not served 
with summons or process in said case, and said decree of 
Burke v. Kleiman was therefore void and could not be 
res judicata.

II. The proceedings and the decree in the case of 
Burke v. Kleiman found by the trial chancellor to have 
been fraudulently and collusively brought and obtained 
upon the basis o f a false stipulation o f facts that the re­
quired frontage consent had been obtained, cannot be 
res judicata against any one, and especially not against 
the petitioners and their privies who were not parties and 
were not served with summons or process in said suit and 
given a real opportunity to defend.

m .  The enforcement, by the State courts by means of 
a mandatory injunction o f a harsh, oppressive and dis­
criminatory restrictive agreement among property own­
ers wherein Negroes are prohibited from owning and oc­
cupying real estate solely on account of their race or 
color, deprives the petitioners of due process of law, the 
equal protection of the laws, and likewise abridges their 
privileges and immunities as citizens of the United States 
in violation of the 14th Amendment to the Federal Con­
stitution, and is in further violation o f Secs. 1977 and 
1978 of Revised United States Statutes; such enforcement 
is contrary to the natural and inalienable rights of peti­
tioners as citizens of the United States under the 14th 
Amendment.

IV. The decree o f the State Courts which deprived the 
Hansberrys of their property without compensation was 
so arbitrary and contrary to law as to amount to a mere 
spoliation in violation o f their rights to due process of 
law under the 14th Amendment to the Federal Constitu­
tion.



31

V. The decree of the State Courts enjoining Israel 
Katz, having 'been entered without any evidence whatso­
ever, is so plainly arbitrary and contrary to law, as to 
amount to a mere spoliation of the petitioner Katz and 
as a consequence was an arbitrary and capricious judicial 
seizure of his property and a denial of his rights without 
due process of law in violation of the 14th Amendment 
to the Federal Constitution.



32

ARGUMENT.

I. A  property owner's restrictive agreement between 
500 or more different owners owning 500 or more differ­
ent and dissimilar parcels of real estate cannot be the 
subject matter of a class or representative suit, for there 
must be a common subject matter or identical interest 
among all the members of the class. See Smith v. Sworm- 
stedt, 16 Howard 288 at 303 ; Wabash Railway Company 
v. Adelbert College, 208 U. S. 38 at 57-59; Hartford Life 
Ins. Co. v. Ibs., 237 U. S. 662 at 671; Christopher v. 
Brusselback, 302 U. S. 500 at 505. The plaintiff who 
brings a class suit must sue or defend for the benefit of 
all. A  mere common interest in the question involved is 
not enough upon which to base a representative or class 
suit. See:

Story, 6th Ed., Sec. 97, p. 109.
Moore’s Federal Practice, Vol. 2, p. 2236.
Hale v. Hale, 146 111. 227, 258.
Weberpals v. Jenny, 300 111. 156.

Nor is mere numerousness of parties sufficient for the 
bringing of a class or representative action. See Matt­
hews v. Rodgers, 284 U. S. 521 at 529-30’.

The proceedings and decree in the case of Burke v. 
Kleiman pleaded as res judicata was a situation where 
one property owner was suing another property owner to 
the detriment and injury of the latter to enforce the 
terms of an alleged restrictive agreement to -which the 
grantors of both were purportedly parties signatory. In 
other words, the plaintiff, Burke, was not representing 
the defendant, Kleiman, in respect to any common sub­
ject matter for the benefit of all involved, but on the con­
trary, was engaged in a supposed dispute involving a 
different and diversity of interest and conflict of interest



33

between the plaintiff Burke and the defendant, Kleinian 
on the matter of leasing the one parcel of property in­
volved, owned by the Kleimans, to Negroes or colored 
people. (Bee. 312-337.) There was no common subject 
matter, but apparently a sharp conflict of interest and 
opinion in respect to the enforcement of the restrictive 
agreement by the plaintiff Burke and against the defend­
ant Kleinian. Consequently, the case of Burke v. Klei- 
man could not possibly be a representative or class action, 
and since neither the petitioners nor any of their grantors 
were parties to that action, nor served with su m m ons or 
process, the decree of Burke v. Kleinian could not in the 
absence of the petitioners or their grantors bind, conclude 
and estop the petitioners or their grantors as res judicata; 
and both the trial court and the Supreme Court of Illinois 
erred in finding that decree binding thereby depriving 
petitioners of their rights and property without due proc­
ess of law in violation of the 14th Amendment.

A  property owner’s restrictive covenant, which involves 
500 or more different owners owning dissimilar parcels 
of real estate, all of which are differently situated, some 
with mortgages upon them, and some free and clear of 
encumbrances, some heavily burdened by taxes, and some 
not, some large, and some small, some homes and resi­
dences and some apartment buildings and commercial 
properties, some owned by private individuals and others 
by banks and insurance companies, some close to and 
adjacent to colored people and some far away, some 
owned by minors, guardians or trustees, some owned by 
hotels or inns under a statutory duty imposed by the 
Civil Bights Act of the State of Illinois to admit all per­
sons without regard to race or color, some owned by hos­
pitals under a like statutory duty to admit all persons, 
some wishing to enforce the agreement and others not, in­
herently cannot be the subject matter of a representative



3 4

or class action, because there can be no common or iden 
tical interest between the property owners, and because 
instead of one common subject matter, there are 500 or 
more different subject matters, namely: 500 or more par­
cels of property. In the instant case, the Supreme Court 
of Illinois has affirmed a decree which held a suit to be 
representative where the plaintiff Burke was suing 
another member of a class whom the plaintiff purported 
to represent. An allegation in a complaint, that a plain­
tiff brings the action on behalf of himself and all others 
similarly situated, does not in itself make an action a 
class suit. See Wabash Railway Co. v. Adelbert College, 
208 U. S. 38 at 57-59; Hamer v. New York Railways Co., 
244 U. S. 266 at 273.

In sustaining the plea of res judicata against the peti­
tioners, when neither they nor their grantors were par­
ties to the proceedings of Rurke v. Kleiman, the courts 
below thereby denied the petitioners the right to notice, 
the right to a real opportunity to appear and defend, and 
the right to their day in court in violation of the due 
process clause of the 14th Amendment. See Postal Tele­
graph Cable Co. v. Newport, 247 U. S. 464 at 475; Rrink- 
erhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673 at 
682; Scott v. McNeal, 154 U. S. 34 at 45, 46; Pennoyer v. 
Neff, 95 U. S. 714 at 727, 733,

Furthermore it should be borne in mind that in the 
Rurke v. Kleiman case only one violation of the covenant 
was sought to be enjoined in respect to one parcel of 
property owned by the defendant Kleiman. Therefore, 
assuming for the moment that Rurke v. Kleiman could 
have been a representative suit, the decree would have 
been binding only upon the particular property charged 
with the violation that being the only property within the 
jurisdiction of the court. It could not have been binding



35

upon all the lots in the area as it would have in effect 
prejudged many possible controversies not yet arisen in 
respect to more than 500 lot owners and alleged signa­
tories to the covenant merely to settle the issues involved 
in the one case of Burke v. Kleiman. It would have pre­
judged all questions of execution on the part of any and 
all of the alleged signatories to the covenant; it would 
have prejudged all questions of authority on the part of 
agents, trustees, agents for corporations, guardians and 
minors or the like to execute the alleged covenant; it would 
have prejudged unforeseen facts and circumstances such as 
changes in the neighborhood which would have rendered 
enforcement of the alleged agreement so harsh, oppressive, 
unreasonable and burdensome as to make it unenforce­
able in a court of equity. See Saunders v. Poland Park 
Company (Md. Court of Appeals), 198 Atl. 269, in sup­
port of this proposition. See also Pennoyer v. Neff, 95 
U. S. 714 at 733; Boswell’s Lessee v. Otis, 9 Howard 336 
H. S. at 347, 348, 350.

It therefore follows that Burke v. Kleiman could not 
be res judicata as to the properties involved in this 
case, the court not having jurisdiction of either the prop­
erty or the parties. See Bosivell Lessee v. Otis, et al., 9 
Howard 336 at 350.

A. Of all the petitioners entitled to urge full and com­
plete defenses, certainly the petitioners, Supreme Liberty 
Life Insurance Company and Harry H. Pace, sued as its 
President were entitled to present them. Mortgagees 
were expressly exempt from the operation of the alleged 
agreement. (Rec. 452.) Not having purchased any prop­
erty in the area and having acted only in a manner en­
tirely lawful and permitted even under the alleged agree­
ment and being authorized under the laws of the State



36

of Illinois to make mortgages on i-eal estate, the arbi­
trary aot of the court in applying the doctrine of res 
adjudicata was not merely erroneous but deprived these 
petitioners o f their substantial, substantive rights and 
seriously interfered with and hampered their competitive 
opportunities to make earnings from investments. Cer­
tainly these petitioners had the right to be heard on the 
question whether this alleged covenant had ever been 
executed by the owners of 95% of the frontage in the 
area involved, but the court denied them such right when 
it sustained the plea of res adjudicata interposed by re­
spondents. Petitioners were charged with conspiring to 
violate a covenant, which by the evidence adduced at the 
trial was shown: conclusively and indubitably never to 
have existed. This was a direct denial of due process and 
wre submit that such action cannot be countenanced by 
the highest tribunal of our nation.

B. In the instant case, the trial chancellor found that 
the restrictive agreement involved in this case and in 
Burke v. Kleiman was an invalid agreement because the 
required frontage consent of the owners of 95% of the 
frontage had never been obtained, but only 54%. (Rec. 
266-267, 110.) Nevertheless the Chancellor found that 
Burke v. Kleiman was a representative or class action. 
(Rec. 118-119.) It is difficult to understand how any class 
could ever have existed when the condition precedent of 
frontage consent of 95% had never been complied with. 
The decree of Burke v. Kleiman was therefore, a void de­
cree and the court had no jurisdiction to enter the decree 
therein. See Scott v. McNeal, 154 II. S. 34 at 45, 46; Old 
Wayne Mutual Life Insurance Company of Ind. v. Mc­
Donough, 204 IT. S. 8 at 15-17, 23; Matthews v. Rodgers, 
284 U. S. 521 at 529-30; Christopher v. Brusselback, 302 
U. S. 500 at 505; Bovey  v. Elliot, 167 U. S. 409.



37

Moreover, it is clear that each signer of the alleged re­
strictive agreement did not waive or surrender his right 
to contest the due and proper execution and acknowledg­
ment of the said agreement, nor did he waive or sur­
render his right to contest compliance with the condition 
precedent to the agreement becoming operative—to-wit 
the execution and due acknowledgment of said agreement 
by the owners of 95% of the frontage. In these respects 
there could be no representation and the execution of the 
agreement might be contested by him, by any other, or 
by all of the purported signers whenever their property 
was sought to be charged or burdened. See Christopher 
v. Brusselback, 302 U. S. 500 at 503 to 505. In the in­
stant case petitioner Katz denied the execution and ac­
knowledgment of the agreement (Rec. 79, 81), and Eva 
Somerman, a witness for the respondents, the Hansberry’s 
predecessor in title denied that she acknowledged the 
agreement (Rec. 130); and yet the holding by the court 
that Burke v. Kleiman was res judicata precluded the 
court from giving the proper consideration to their tes­
timony.

The decree of the courts beloAv in this case is therefore, 
void and entered without jurisdiction in violation of the 
due process clause of the 14th Amendment to the Consti­
tution of the United States. See Scott v. McNeal, 154 
U. S. 34 at 45, 46; Postal Telegraph <& Cable Co. v. New­
port, 247 U. S. 464 at 475; B rink erho if-Fa ris Trust 'and 
Savings Bank v. Hill, 281 U. S. 673 at 682.

II. The trial chancellor found the proceedings in the 
case of Burke v. Kleiman to have been fraudulently and 
collusivelv brought and the decree therein to have been 
fraudulently and collusively obtained upon the basis of a 
false stipulation o f facts between the attorneys that the 
required frontage consent of 95% had been obtained al­



38

though only 54% of the frontage by ownership had ever 
consented. (Rec. 118-119, 266-268.) Nevertheless, the 
Chancellor held this fraudulently decree to be res judi­
cata between the petitioners. The law is well settled 
that a fraudulent or collusive decree cannot be pleaded 
as res judicata. See Lord v. Veazie, 8 Howard 251 at 
255; Beals v. III. M. & T. B. Co., 133 U. S. 290; Riehle 
v. Margolies, 279 U. S. 218. Further it has been de­
cided by this court in the case of Michael v. Post, 21 
Wall. 398, that such a fraudulent and collusive de­
cree and judgment is void and may be attacked col­
laterally. Affirmance of this decree by the Supreme 
Court of Illinois -was consequently a denial of due proc­
ess to the petitioners in violation of the 14th Amend­
ment. It is true that the Supreme Court of Hlinois stated 
that there was no evidence of fraud in the decree and 
proceedings in Burke v. Kleiman but said statement was 
wholly unsupported bv the evidence adduced and was in­
consistent with the facts and findings of the trial chan­
cellor. In making such a statement that there was no evi­
dence of fraud in the case of Burke v. Kleiman a substan­
tial Federal right of the petitioners was thereby denied 
in violation of the due process clause of the 14th Amend­
ment. Since the finding o f the majority of the Supreme 
Court of Hlinois "was not only contrary to the finding of 
the trial chancellor, contrary to law but was likewise 
■wholly without basis of any facts or evidence to sustain 
it. The majority opinion of the Supreme Court of Hlinois 
has also misapprehended the verv well established rule of 
law that a collusive and fraudulent decree can­
not be pleaded res judicata. The chancellor found 
that a fraudulent and collusive suit was brought 
by Burke v. Kleiman (Rec. 266-268), that a false stip­
ulation was signed by the attorneys one of whom entered 
an appearance for Isaac Kleiman and .Tames Lowell Hall,



39

defendants, who testified that they did not employ any 
lawyers to represent them (Rec. 237-238) and had not 
authorized any lawyer to sign a stipulation in their behalf. 
(Ree. . . )

The Notary Public who took the acknowledgment of 
Olive Ida Burke to the complaint filed in the case of 
Burke v. Kleinian, was Fred L. Helman (Rec. 329), who 
was at the time of the filing of the case of Burke v. Klei­
nian, the Executive Secretary of the Woodlawn Property 
Owners Association, the object of which was the enforce­
ment of the agreement involved in that case and in the 
case at bar. (Rec. 283.) Helman, in an uncontradicted 
affidavit appearing of record, stated positively under 
oath, that he was instrumental in attempting to create the 
restrictive agreement, and that after its filing on Febru­
ary 1, 1928, that he made an investigation of his own notes 
and papers and records of the Recorder’s Office and found 
that the restrictive agreement had not been signed by the 
required frontage consent of 95% and found that the re­
strictive agreement had never in fact come into force or 
effect. (Rec. 284-286.) Helman further stated that he had 
supervised the filing of the case of Burke v. Kleiman in 
1932 to enforce the restrictive agreement which had al­
ready been known by him for at least three and a half 
years not to exist. (Rec. 286, 284.) He paid the court, costs 
and generally supervised the prosecution of the case as 
well as conferred with the officials of the Woodlawn 
Property Owners Association. (Rec. 286.) In addition to 
these facts, the respondents made no effort to prove the 
existence of any restrictive agreement, but relied wholly 
upon the technical doctrine of res judicata. Under such 
circumstances, the Supreme Court of Illinois in its ma­
jority opinion, finds that there is no fraud in the case of 
Burke v. Kleiman. In other words, there was no real or



4 0

actual controversy between the parties nominally opposed 
to each other in Burke v. Kleiman and the litigation was 
in fact carried on under the direction of the plaintiff and 
the Woodlawn Property Owners Association, which con­
trolled the litigation on both sides, with a view of obtain­
ing an opinion on a matter of law and an adjudication of 
a non-existent fact in a manner and way pre-determined 
by themselves to the injury of every purported party sig­
natory to the alleged restrictive agreement. Hatfield v. 
King, 184 U. S. 163 at 165.

It has been decided repeatedly by this court, that where 
it is asserted that a federal right has been violated, that 
this court will, and must, examine the facts and the rec­
ord to ascertain whether or not the federal right has in 
substance and effect been denied. See Norris v. Ala­
bama, 294 U. S. 587 at 590; Creswell v. Knights of 
Pythias, 225 U. S. 246 at 261; Postal Telegram Cable Co. 
v. Newport, 247 U. S. 464 at 473; Carlson v. Curtis, 234 
U. S. 103 at 106; Southern Pacific R. R. Co. v. Schuyler, 
277 U. S. 601 at 611.

III. The enforcement by the State’s judicial officers, 
agencies and courts, of such a harsh, oppressive and dis­
criminatory agreement is state action, and therefore, a 
denial of the petitioners’ right to due process of law in 
violation of the 14th Amendment to the Constitution. See 
Brinkerhof-Faris Trust and Savings Co. v. Hill, 281 U. S. 
673 at 682; Carter v. Texas, 177 U. S. 442; Gandolfo v. 
Hartman, 49 Fed. 181; Ex parte Virginia, 100 U. S. 339. 
It would be therefore, a very narrow and strained con­
struction of the 14th Amendment to hold that while the 
state and the municipal legislatures are forbidden to dis­
criminate against citizens in their legislation, that never­
theless the state courts by their judicial recognition and 
participation in such agreements, could nevertheless by



41

their state action do something which the sovereign legis­
lature might not do. See Gandolfo v. Hartman, 49 Fed. 
181. It is one thing to say that citizens may do with 
their property what they please and enter into such harsh, 
oppressive and discriminatory restrictive agreements, as 
such agreements among themselves might give certain 
sanctions among themselves, and a certain desired effect 
in respect to dealing with their own property, however, 
when the state, through its courts, enforces such harsh, 
oppressive, and discriminatory restrictive agreements, it 
is thereby providing the necessary state action which 
violates the 14th Amendment. See Chicago, Burlington 
& Quincy B. B. Co. v. Chicago, 166 U. S. 227 at 233 to 
235, which holds that the Amendment may be violated by 
the judicial authorities of the state as well as by the 
legislature and executive branches, and further, that who­
ever acts in the name and for the state, is clothed with 
the state’s power, and is acting for the state. The peti­
tioners contend that, it is the enforcement of this harsh, 
oppressive and discriminatory restrictive agreement 
against citizens of the United States by the judicial 
authorities of the state, which violates the 14th Amend­
ment. See Brinkerhoff-Faris Trust and Savings Co. v. 
Hill, 281 U. S. 673 at 682; Carter v. Texas, 177 U. S. 
442; Strauder v. West Virginia, 100 U. S. 303.

The restrictive agreement by its own terms required 
the use of the State’s public offices for its creation and 
enforcement; and the state thereby became a necessary 
part of it. The agreement provided that it should be of 
no force or effect unless it was recorded in the office of 
the Recorder of Deeds of Cook County, Illinois. It further 
provided that the agreement may be enforced by any 
permissible legal or equitable proceedings, including pro­
ceedings to enjoin violation and for specific performance.



42

Hence it looked forward to and depended for its efficacy 
upon its enforcement by the state judicial officers, agencies 
and governmental machinery. The state was therefore, 
an active party and contemplated as such in this agree­
ment, and when these individuals entered into such an 
agreement and provided for the active participation of 
the State in the creation of the agreement and other en­
forcement thereof, the state thereby became so integral 
a part of said agreement, that its enforcement would 
amount to State action and the violation of the 14th 
Amendment to the Constitution of the United States. 
See Chicago, Burlington & Quincy Railroad v. Chicago, 
166 U. S. 227, at 233 to 235; Ex parte Virginia, 100 U. S. 
339; Carter v. Texas, 177 U. S. 442.

Sections 1977 and 1978 of the United States Revised 
Statutes (Title 8, U. S. C. A., 41, 42) passed pursuant to 
the 14th Amendment, are as follows:

“ All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security 
of persons and property as is enjoyed by white citi­
zens, and shall be subject to like punishment, pains, 
penalties, taxes, licenses and exactions of every kind, 
and no other.”

“ All citizens of the United States shall have the 
same right, in every State and Territory, as is en­
joyed by white citizens thereof to inherit, purchase, 
lease, sell, hold and convey real and personal prop­
erty. ’ ’

It has been held by this court that a right which arises 
under the Constitution and Laws of the United States is 
a privilege and immunity which will be protected by the 
14th Amendment. Twining v. New Jersey, 211 U. S. 78. 
When the petitioners Hansberry purchased the property



43

at 6140 Rhodes Avenue, they exercised their' national 
citizenship conferred by the above statute and the 14th 
Amendment. The right to own and occupy real estate 
is a privilege and immunity acquired by reason of the 
petitioners’ national citizenship under the 14th Amend­
ment to the Constitution. The very status of national 
citizenship connotes equality of rights and privileges so 
far as they flow from such citizenship, everywhere within 
the limits of the United States, and further, that the 14th 
Amendment in effect makes that citizenship ‘ ‘ paramount 
and dominant”  instead of ^derivative and dependent”  
upon state citizenship. See Colgate v. Harvey, 296 IT S 
404.

And furthermore the enforcement of an agreement which 
prohibits ownership of real property by a citizen of the 
United States is contrary to the natural and inalienable 
rights of a citizen by virtue of his national citizenship 
under the 14th Amendment. See Colgate v. Harvey, 296 
U. S. 404 at 430, 431, 433.

IV. The decree entered by the trial chancellor and 
affirmed by the Supreme Court of Ulinois, directed the 
Hansberrys to give their property to some white person 
without providing for any compensation. This action of 
the state courts is pure and unadulterated confiscation of 
the building and property of the Hansberrvs and is a 
manifest violation of the 14th Amendment to the Federal 
Constitution. This decree is so plainly arbitrary and so 
contrary to law as to amount to a mere spoliation. See 
Delmar Jockey Club v. Missouri, 210 IT. S. 324 at 335.

V. The decree of the State Court enioinimr Israel 
Katz is so plainly arbitrary and contrary to law and 
without basis of evidence as to amount to a mere spolia­
tion of the petitioner and as a consequence was an arbi­
trary and capricious judicial seizure of his property and



44

denial of his rights without due process of law in violation 
of the 14th Amendment to the Federal Constitution.

The complaint of the respondents charged that the peti­
tioner Katz, listed his property for sale with James J. 
Burke, and that he made threats to sell his property to 
colored people. Katz testified that he never at any time 
had any conversation with James J. Burke about the sale 
of his property at 6018 Vernon Avenue (Rec. 239), and this 
fact was never rebutted in any manner whatsoever by the 
respondents. The complaint also charged that Katz made 
threats to sell his property. (Rec. 17-18.) No threats hv 
Katz whatsoever were ever proved. The respondents 
merely offered the following things as evidence of threats 
by Katz: That Katz was subpoenaed as a "witness in a
proceeding before the State Department of Registration 
and Education in February or July, 1937, according to 
respondents’ witness Raymond (Rec. 169-170); that while 
testifying as a "witness in this proceeding against William 
I. Sexton, a real estate broker, Attorney TTarrv E. Ray­
mond, one of the attorneys for the respondents as shown 
by the record in this case, and one of the attorneys for 
the plaintiff in the case of Burke v. Kleiman, asked Katz 
the following question: “ Would you sell your propertv
at 6018 Vernon Avenue to colored people, notwithstand­
ing the agreement that is recorded in the particular dis­
trict. Washington Park District, in which vour propertv 
is located, and in which you the owner, then owner of 
this propertv was a signer for yourself1?”  And Katz 
said: “ Yes, I would. T would sell it to anybodv that I
could get to purchase it. T would sell it now if T could. 
This was not a threat, but was an answer elicited by the 
respondents themselves or their agents from a witness 
who was subpoenaed bv them and who was answering a 
hypothetical question put by their attorney. Tn other



45

words, the only evidence in the record as to any threat 
is a privileged statement made by the petitioner Katz, 
and induced by the respondents themselves while upon 
the witness stand in another proceeding in February, 1937 
or July, 1937, as stated by the witness Raymond (Rec.

The witness Raymond was in utter confusion as to 
the date of this testimony by the petitioner Katz, and 
testified that it was made either February, 1937, which 
was at least four months prior to the filing of the in­
junction suit or in July, 1937, which "would have been after 
the filing of the complaint in this cause, which was filed 
on June 7, 1937.

In other words, the supposed statement of Katz was not 
of such imminent or immediate pending nature that an 
injunction was necessary to protect the rights, if any, 
of the respondents. A  substantial Federal right has been 
denied the petitioner Katz, and a decree of injunction has 
been issued against him without any real basis of evi­
dence. In order to determine the violation of the Federal 
right asserted by the petitioner Katz, we submit that the 
court should examine the record for the purpose of de­
termining the violation of the Federal right, asserted. See 
Norris v. Alabama, 294 U. S. 587 at 590; Creswill v. 
Knights of Pythias, 225 U. S. 246 at 261; Truax v. Cor­
rigan, 257 U. S. 312 at 324-325.



46

CONCLUSION.

It is therefore, respectfully submitted that this case is 
one calling for the exercise by this court of its super­
visory powers in order that the errors herein pointed 
out may be corrected; that the law may be properly and 
authoritatively defined, and that the judgment and decree 
of the Circuit Court of Cook County, Illinois, and of the 
Supreme Court o f Illinois should be reversed in order 
that justice may be done to your petitioners; and that 
to such an end a writ of certiorari should be granted and 
this court should review the decision of the Supreme 
Court of Illinois and finally, reverse the same.

Earl B. Dickerson,
Truman K. Gibson, Jr.,
C. Francis Stradford,
L oring B. Moore,
Irvin C. Mollison,

Attorneys for Petitioners.



47

APPENDIX.

OPINION OF THE SUPREME COURT 
OF ILLINOIS.

Majority Opinion. 
Dissenting Opinion.

Docket No. 25116—Agenda 19—April, 1939.
Anna M. Lee et al., Appellees, v. Carl A. Hansberry, et al.,

Appellants.

Mr. Justice Jones delivered tbe opinion of the court: 
Plaintiffs (appellees here), brought an action in the 

Circuit Court of Cook County for the purpose of enforc­
ing a certain “ restrictive agreement’ ’ concerning the real 
estate of approximately five hundred owners in the City 
of Chicago. The substance of this agreement, set forth 
in haec verba in Burke v. Kleinian, 277 111. App. 519, was 
that no part of the property restricted should be sold, 
leased to, or permitted to be occupied by any person of 
the colored race prior to January 1, 1948. The property 
covered by the agreement consists of approximately 
twenty-seven blocks and parts of blocks between Sixtieth 
and Sixty-third Streets, and between Cottage Grove and 
South Park Avenues in Chicago. The agreement con­
tained the following provision: “ This agreement and 
the restrictions herein contained shall be of no force or 
effect unless this agreement or a substantially similar 
agreement, shall be signed by the owners above enu­
merated of ninety-five per centum of the frontage above 
described, or their heirs or assigns, and recorded in the



48

office of the Recorder of Deeds of Cook County, Illinois, 
on or before December 31st, 1928.”

The complaint alleged that the owners of ninety-five 
per cent of the frontage signed the agreement and that 
it was recorded February 1, 1928. It further alleged a 
conspiracy on the part of the defendants to destroy the 
agreement by selling or leasing property in the restricted 
area to Negroes. It charged that Eva Sommermon, one 
of the signers of the agreement, conveyed her property 
to one Stoltz, who, on the same day, conveyed it to the 
First National Bank of Englewood; that, through fraudu­
lent concealment on the part of the defendants James J. 
Burke and Harry A. Pace, from the bank, of the face 
Ilansberry was a Negro and that the property was being 
purchased for him, a deed was procured from the bank to 
Jay B. Crook, who, in fact, purchased for Hansberry; that 
the deed from the bank to Crook was not delivered until 
May 26, 1927, but that on May 19, 1937, Crook and his wife 
executed and delivered a trust deed to the Chicago Title 
and Trust Company, as trustee, to secure their note for 
$4,400 payable to defendant the Supreme Liberty Life 
Insurance Company, of which defendant, Pace, a colored 
attorney, was president. May 26, 1937, the day the deed 
was delivered, Ilansberry and his family moved into the 
premises.

The answer of defendants denied that the owners of 
ninety-five per cent of the frontage described in the re­
strictive agreement had signed the agreement, and asserted 
the agreement never went into effect. It also denied the 
principal allegations of the complaint and set up several 
affirmative defenses. To the defense that the agreement 
was never executed plaintiff replied that that question 
was res judicata, having been determined in Burke v. 
Kleiman, supra, and in other cases in the Circuit and



49

Superior Courts of Cook County. The Chancellor re­
served his ruling on the plea of res judicata and the cause 
proceeded to a hearing on the merits. At the close of the 
evidence the court found that the owners of only about 
fifty-four per cent of the frontage had signed the agree­
ment, but held the question of execution was res judicata. 
A decree was entered in conformity with the prayer of 
the complaint, restraining defendant Burke from selling 
or leasing any real estate within the restricted area to 
Negroes, or to white persons for the purpose of. selling 
or leasing to Negroes; restraining defendant Katz from 
selling or leasing a certain described building to Negroes; 
restraining defendants Pace and the Supreme Liberty 
Life Insurance Company from making any further loans 
on real estate in the restricted area to Negroes or for 
occupancy by Negroes; declaring the conveyance to Hans- 
berry and wife void and ordering them to remove from the 
premises, and holding the restrictive agreement valid 
and in full force and effect. Inasmuch as a freehold is 
involved, defendants have appealed directly to this court.

In order to decide whether the question of due execu­
tion is res judicata, it will be necessary to examine the 
case of Burke v. Kleiman, supra. That was a suit to 
enforce this same agreement, Olive Ida Burke, wife of 
James J. Burke, a defendant in the case at bar, was 
plaintiff. The complaint recited that she filed it “ on 
behalf of herself and on behalf of all other property 
owners in the district covered and affected by the agree­
ment hereinafter mentioned, and who are, or whose 
grantors, direct or otherwise, were parties to said in­
denture of agreement, and whose property interests will 
be adversely and injuriously affected by the violation 
hereinafter mentioned by the said defendants of the cove­
nants and terms of said agreement. ’ ’ The defendants were 
Isaac Kleiman, the white owner, Sam Kleiman, James



50

L. Hall, a Negro tenant, and Charles J. Sopkin, trustee of 
a trust deed on the property. The complaint alleged the 
agreement was signed by the owners of ninety-five per cent 
of the frontage and duly recorded February 1, 1928. A  
stipulation was entered into to this effect. The court re­
cited the stipulation in its decree and found that the 
facts stipulated were true. The court further found, 
“ that said indenture was in full force and effect on Feb­
ruary 1, 1928, and all conditions therein contained with 
respect to execution and recordation thereof, were fully 
complied with;”  that “ all terms of said indenture agree­
ment are entirely valid and binding,”  and that it is a 
covenant running with the land. This decree was affirmed 
by the Appellate Court.

It thus appears that Burke v. Kleiman, supra, was a 
class or representative suit. It cannot be seriously con­
tended that it was not properly a representative suit. 
There was a class of individuals who had common rights 
and who needed protection. They were so numerous 
it would have imposed an unreasonable hardship and 
burden on them to require all members to be made parties 
to the suit. Under such circumstances we have repeatedly 
held that a court of equity has jurisdiction of representa­
tive suits, and where the remedy is pursued by a plaintiff 
who has the right to represent the class to which he 
belongs, other members of the class are bound by the 
results in the case unless it is reversed or set aside 
on direct proceedings. Goves v. Farmers State Bank, 
368 111. 35; Leonard v. Bye, 361 id. 185; Greenberg v. 
City of Chicago, 256 id. 213.

Appellants contend the doctrine is inapplicable here for 
the reason there was no class, since the evidence shows 
the requirement that the owners of ninety-five per cent 
of the frontage sign the agreement, was not met. This



51

argument loses sight of the fact that in Burke v. Kleiman, 
supra, the court had jurisdiction to determine -whether 
or not that condition precedent had been complied with. 
The mere fact that it later appears that the finding is 
untrue does not render the decree any the less binding. 
The principle of res judicata covers wrong as well as 
right decisions, for the fundamental reason that there 
must be an end of litigation. A matter which has once 
been determined by a court of competent jurisdiction 
cannot, in a later suit involving the same subject matter 
and the same parties or members of the same class, be 
again inquired into.

We see no merit in the contention that Burke v. Klei­
man, supra, is not res judicata because the fact of due 
execution was established by stipulation. There is no evi­
dence of fraud or collusion in that case. Defendant 
Burke, who was beneficial owner of plaintiff’s property, 
avers in his answer here that that suit was instituted at 
the instance of the Woodlawn Property Owners Associa­
tion, whose purpose was the enforcement o f the restric­
tive agreement. That may be true, but there is no show­
ing of fraud or collusion in procuring that stipulation 
or that there was not an actual controversy in the case. 
At that time Burke was an officer of the Woodlawn Prop­
erty Owners Association. Afterwards he resigned his 
position and withdrew from the association with ill feel- 
ings, and stated several times that he would put Negroes 
in every block of that property. In carrying out his 
threat, he falsely represented that prospective customers 
were white. As far as the record shows, if any fraud 
was committed, it was by Burke after he left the asso­
ciation. It does not appear that he was not acting in 
good faith in Burke v. Kleiman, supra.

In our opinion the questions of execution and validity



52

of the restrictive agreement are res judicata. The rea­
sons assigned, in addition to these urged in Burke v. Klei- 
man, supra, for holding the agreement invalid cannot be 
considered. It is well settled that the doctrine of res 
judicata extends not only to matters actually determined 
in the former suit, but also embraces all grounds of re­
covery and defense involved and which might have been 
raised. By assigning new reasons for holding the agree­
ment invalid, which existed at the time that decision 
was rendered, the parties cannot relitigate the question 
settled by the prior decree. In re Northivestern University, 
206 111. 64; Midlinsky v. Rubin, 341 id. 378; People v. 
Wade, 351 id. 484; Webb v. Gilbert, 357 id. 340.

The evidence fully justifies the finding of the Chancellor 
that the charges of the complaint were established, and ap­
pellants do not argue to the contrary, except as to Israel 
Katz. There was testimony that he said he would sell 
his property to anybody, including Negroes. This is 
sufficient evidence to warrant enjoining him from doing 
that which he is bound by the restrictive agreement not 
to do.

Appellants contend it was error to restrain the Supreme 
Liberty Life Insurance Company from making loans in 
the restricted area to Negroes or for Negro occupancy, 
for the reason mortgagees were expressly exempted from 
the operation of the restrictive agreement, The provi­
sion relied on is “ and provided, further, that the lien 
of no mortgage or trust deed in the nature of a mortgage 
shall be impaired or invalidated by reason of the breach 
of any of the provisions of this agreement, whether any 
such breach shall have occurred prior or subsequent to 
the recordinsr of any such mortgage or trust deed.”  The 
next clause is “ and provided, further that nothing con­
tained in the foregoing provisions shall in any manner



53

impair tlie right of any person or persons interested, to 
enforce at all times and against all persons the restric­
tions in this agreement contained prohibiting the use or 
occupation of all or any part of said premises by a 
Negro or Negroes.”  That part of the agreement relied 
on merely provides that the loan or mortgage shall not 
he invalidated by reason of its being made in violation 
of the restrictive agreement. It does not give mortgagees 
a license to conspire to destroy the agreement, as the 
evidence shoAvs this insurance company was doing. The 
decree simply restrains them from making such loans 
in the future; it does not attempt to hold any existing 
loans or mortgages invalid. The 00111!; did not err in 
this respect.

We cannot agree that the court, erred in overruling 
appellants’ motion to set aside the decree and for a new 
trial. This motion was supported hv an affidavit of 
Fred L. Helman, which recited that Helman Avas execu­
tive secretary of the Woodlawn Property Owners Associa­
tion from 1926 to 1933. The substance of the affida\fit 
is that he had charge of the Avork of obtaining signatures 
to the restrictive agreement, and that at the time the 
case of BurJce v. Kleiman, supra, was instituted, as a 
result of his oaaui investigation, he knew that the OAvners 
of ninety-five per cent of the frontage involved had not 
signed the agreement, and that he conferred Avith vari­
ous officials of the association in regard to the filing of 
that suit. The affidavit does not state that he communi­
cated his information to anybody, or that Olive Ida Burke 
or any individual of the representative class for whose 
benefit the suit Avas brought, or any of the officers of the 
association, except Helman, knew of this fact. As far as 
the affidavit discloses Helman is the only person who 
knew of the defect. It does not allege the suit Avas



54

brought at the request of the association or that it was 
not instituted by Mrs. Burke of her own volition and in 
good faith, for the benefit of herself and the other mem­
bers of the class. The motion was properly denied.

The decree of the Circuit Court is affirmed.
D ec re e  a f f ir m e d .

Mr. Justice Shaw, dissenting:
The opinion of the majority depends on its holding 

that the case of Burke v. Kleimcm, supra, is res judicata 
of the points involved and that those points are not 
subject to further judicial examination. It is said first, 
that this was a class or representative suit, and second, 
that in that case the court had jurisdiction to determine 
whether or not the necessary ninety-five per cent of the 
frontage had signed up. It is further insisted that the 
question of jurisdiction cannot be collaterally attacked but 
that the only remedy must have been by appeal from the 
judgment in that case.

The opinion of the trial judge is based entirely upon 
the grounds of res judicata and he very reluctantly felt 
himself bound by the prior decision. Reference to the 
abstract of record shows a definite finding of the fact 
that the agreement was never signed by the requisite 
number of property owners and, in the words of the trial 
judge: “ in other words, there is an invalid agreement 
which is now sought to be enforced * * * and we know 
it was a fraud because the proof now shows that there 
wasn’t ninety-five per cent * * * he committed a fraud 
when he brought this lawsuit,”  etc.

The undisputed fact is that by means of fraud and 
collusion between total strangers and agreement which 
is void on its face has been imposed upon some ten



55

million dollars worth of the property of five hundred other 
parties who were never in court, who never had notice 
of any lawsuit, who were never by name or as unknown 
owners made parties of any lawsuit, and who have never 
been accorded any process whatever, either due or other­
wise. And it is said that this is binding upon them; that 
they constituted a class because one man fraudulently 
said they did and another man collusively, and with equal 
fraud, admitted the allegation, because this second man 
signed a stipulation saying they had signed an agree­
ment which they had never signed. Certainly no man’s 
rights can be safe under such a rule of law. I f one man 
can allege that I signed an agreement and another total 
stranger admit that I signed it and fraudulently bind me 
by this sort of an agreement, it would be contrary to 
the Fourteenth amendment of the constitution of the 
United States. The trial judge found the entire case of 
Burke v. Kleinum tainted with fraud, procured by col­
lusion, and intended only to validate an otherwise invalid 
agreement. He very reluctantly entered a decree in this 
case because of a mistaken idea that the former judgment 
was res judicata.

The opinion in this case states that the defendants 
were so numerous that it would have imposed an unrea­
sonable hardship and burden to make them all parties to 
the suit. This is a definite overruling of Whitney v. Mayo, 
15 111. 251. It is true there were five hundred defendants, 
but even the humblest of these five hundred had a right 
to his day in court, to be made a party to the suit and 
to be given an opportunity to defend it. Their names 
were on the public records of Cook County and not the 
slightest excuse appears for not making them parties to 
the suit. I f  one sought to bind all the property in the



56

City of Chicago by some restrictive covenant, he would 
assume the burden of making every property owner in 
that city a party to his suit, either by name or as un­
k n ow  owner, if he was, in fact, unknow. He could 
not gain an advantage for himself through a fraudulent 
scheme simply by saying they were too numerous to 
mention.

The want of due process is so obvious as to require 
no argument and it must be admitted. It is said, however, 
that the court had jurisdiction to determine whether or 
not it had jurisdiction, and a mere restatement of this 
proposition refutes it. A  court never has jurisdiction to 
determine that it has jurisdiction when it, in law, has not. 
The question of whether or not a court has jurisdiction 
of the parties and the subject matter remains forever open 
and forever subject to collateral attack. No court can 
expand its own jurisdiction simply by finding that it has 
jurisdiction unless that finding is based upon a question 
of fact which it has power to decide. In Caswell v. Cas­
well, 120 111. 377, and in many subsequent cases, this rule 
has been made clear. (Beck v. Lash, 303 111. 549.) The 
most recent reference to it in this court is to be found 
in People v. Sterling, 357 111. 354, where we pointed out 
the distinction between that kind of fraud which goes to 
the jurisdiction of the court, as distinguished from that 
other kind which intervenes to procure a decree after the 
court has obtained a valid jurisdiction. The rule is too 
clear for restatement. Fraud which impairs or prevents 
attachment of jurisdiction may always be raised collat­
erally, and it is only that kind which intervenes after 
jurisdiction has been obtained that cannot be attacked.

We have in the case before us both kinds of fraud: 
Fraud in the procurement of the decree by a false stipu­



57

lation, and a fraud going to the jurisdiction of the court 
in the very basic and essential allegation that there was 
a valid agreement that it was actually signed by the neces­
sary ninety-five per cent of frontage owners, and fraud 
in the jurisdictional allegation that there was a class to 
be represented when, in fact, no such class ever existed.

It is my opinion that even if the attempted agreement 
had been signed by the owners of ninety-five per cent of 
the frontage involved, and if the case of Burke v. Kleiman 
had been brought in good faith instead of fraudulently, it 
still could not have been such a class or representative 
suit as would impair the title of other property owners. 
Without going into extensive citations of authority, it 
seems clear to me that a class suit cannot properly be 
entertained except in that very limited field of cases where 
the parties have not only a common and general interest 
among themselves but also an identical right to be pro­
tected in a single and undivided res. The entire theory 
of class representation is a dangerous exception to the 
general rule that each interested person must be made a 
party by name, notified of the proceedings and given his 
day in court. The rules guarding it must be so strict 
and carefully enforced as to be commensurate with the 
risks of injustice which are involved. Due process most 
certainly required notice and an opportunity to be heard, 
and no case has come to my attention where the court 
has failed to make absolutely certain, in advance, that 
the parties to represent a class must be selected with 
such care and have such personal interest in the litiga­
tion as to guarantee that the rights of all will be fully 
protected.

In the case before us, each property owner held and 
owned his property in severalty. He might or might not



58

wish the covenant enforced. He might or might not wish 
to contest its validity. He might or might not wish to 
sell, lease or mortgage his property without regard to it. 
On any of these questions, his next door neighbor or any 
other property owner in the district might disagree with 
him. There could be no certainty nor even any probabil­
ity that they would all agree on a course of conduct to be 
followed at any particular time or under any particular 
circumstances. There was no common right nor any com­
mon fund, nor any common or undivided res to be dealt 
with, and certainly no one ever had any right or power 
to speak for any one but himself.

The agreement which formed the foundation for this 
fraudulent case of Burke v. Kleinian provided on its face 
that it should be void and of no force or effect unless 
signed by the owners of ninety-five per cent of the front­
age involved within a certain time and placed of record 
within a certain date. To me, it seems obvious that until 
those signatures were obtained and the very terms of 
the agreement itself complied with, there could by no 
possibility be even the semblance of a class to be rep­
resented in a class suit, even if such a suit could be pos­
sible under the circumstances, and it seems to be equally 
beyond question that such a defect in signers could not, 
in a court of chancery, be obviated through a fraudulent 
allegation that they had, in fact, been obtained when they 
had not, and an equally fraudulent and collusive and false 
stipulation that the owners had signed.

Mr. Justice Murphy concurs in this dissenting opinion.







IN THE

Office - u .. f  urt, U. S.
y * C I j I  J .v

OCT 1 1940
m sm  PUEY

clerk

Supreme Court of the United States
October T erm, A. D. 1940

N o. 2 9

GAEL A. HANSBERRY, NANNIE L. HANSBERRY,
et al.,

Petitioners,
vs.

ANNA M. LEE, EDWARD L. GOVANUS, ESTHER. 
GOVANUS, et al.,

Respondents.

ONI WRIT OF CERTIORARI TO THE SUPREME COURT OF THE 
STATE OF ILLINOIS.

BRIEF OF PETITIONERS.

EARL B. DICKERSON,
TRUMAN K. GIBSON, JR.,
C. FRANCIS STRADFORD,
LORING B. MOORE,
IRVIN C. MOLLISON,

Attorneys for Petitioners.

B a r n a r d  &  M ild e r . 33 S. Market St., Chicago. F r a  nklin 0562

PETITION FOR CERTIORARI FILED MARCH 11, 1940. 
CERTIORARI GRANTED APRIL 22, 1940.









SU B JE C T IN D E X .

Beief of Petitionees page

Opinions of Court Below......................................... 1
Jurisdictional Statement .........................................  2-6
Statement of the Case................................................ 7-19
Specifications of Errors............................................19-20
Summary of the Argument......................................21-25

Argument ...........................................................................26-59
I. The affirmance by the State Supreme Court of 

the decree of the trial court in its wrongful 
application of the doctrine of res judicata de­
nied the petitioners the benefit of notice in 
the instant suit and a real opportunity to 
appear, to be heard, and to defend, and so 
deprived each of the petitioners of his prop­
erty without due process of law and denied 
to each of them the equal protection of the
laws .................................................................... 26-27
A. The case of Burke v. Kleiman, held by 

the State Supreme Court to be a class or 
representative suit and res judicata 
against all the petitioners as to execu­
tion, acknowledgment and compliance with 
the conditions precedent to the restric­
tive agreement coming into effect, was 
not a class or representative suit. The 
case was one in which one property owner 
was suing another property owner to en­
force the agreement to the injury and 
detriment of the latter and where there 
was a dispute, conflict of interest and 
diversity of opinion as to the enforce­
ment of the agreement ............................. 27-33



1 1

A  property owners’ restrictive agree­
ment between 500 or more different own­
ers owning 500 or more different and dis­
similar parcels of real estate cannot be 
tbe subject matter of a class or repre­
sentative suit, there being no common sub­
ject matter and no identity of interest
among them .................................................33-34
Tbe issue as to whether a property owner 
is bound is as to each inherently per­
sonal in respect to individual execution 
and acknowledgment, and in respect to 
which no property owner can be repre­
sented .......................................................... 34-35
In particular, among the personal de­
fenses available to each owner in respect 
to the instant restrictive agreement was 
the defense that the undertaking of the 
owner was that he should not he bound 
unless the owners of 95 per cent of the 
frontage joined in the agreement. This 
personal defense is foreclosed by the use 
of the representative suit device..............34-35
A  representative or class suit, if per­
mitted and sustained in such a case, would 
destroy essentially these personal de­
fenses, namely, forgery of signatures, 
fraud and trickery in obtaining signa­
tures, alteration of the instrument, laches, 
waiver, abandonment, estoppel, and change 
in the character of the neighborhood in 
respect to each individual property owner 
which would render inequitable the en­
forcement of the purported agreement. .35-39

PAG E



Ill

B. The purported agreement involved in 
Burke v. Kleiman and in the instant suit 
provided that it was to be null and void 
and of no force and effect unless signed, 
sealed and acknowledged by the owners of 
95 per cent of the frontage. The proof 
in the instant case, as found by the trial 
chancellor, showed that this condition 
precedent to validity was not complied 
with; consequently, no agreement ever 
came into force or effect and there was 
no class to be represented by anyone. The 
court had no jurisdiction to hind the peti­
tioners and their privies who were not 
parties and not served with summons or 
process in said cause. The decree of 
Burke v. Kleiman was therefore void and 
could not be pleaded as res judicata 
against these petitioners........................... 40-45

II. The petitioners were deprived of their rights 
and property without due process of law by 
the judgment of the Supreme Court of the 
State of Illinois, in sustaining the decree of 
the lower court which applied against the 
petitioners as res judicata the case of Burke 
v. Kleiman, the proceedings and decree in 
which were fraudulently and collusively 
brought and maintained as found by the trial 
chancellor .......................................................... 45-49

There was fraud going to the jurisdiction of 
the court in the very basic and essential alle­
gation that there was a valid agreement that 
had actually been signed by the necessary 
owners of 95 per cent of the frontage, and 
fraud in the jurisdictional allegation that

PAGE



i  y

there was a class to be represented when in 
fact, no such class ever existed. Moreover, 
the said proceedings were fraudulently main­
tained by means of a false stipulation of 
facts that the required frontage consent had 
been obtained ...................................................45-49

The false stipulation of facts was preceded by 
stipulation of counsel in said cause that a 
stipulation of fact would be entered into in 
lieu of evidence and the case tried upon the 
pleadings without the necessity of any proof

PAGE

of any sort ........................................................ 45-49
Such a fraudulent proceeding and decree can­

not be res judicata against anyone............ .45-49
HI. The decree of the State Courts which deprived 

the Hansberrys of their property without 
compensation was so arbitrary and contrary 
to law as to amount to a mere spoliation in 
violation of their rights to due process of 
law under the 14th Amendment to the Fed­
eral Constitution .............................................50-51
A. The effect of the decree was to take prop­

erty away from the petitioners, Hans­
berrys, and give it to Crook, their prede­
cessor in title and an alleged co-con­
spirator with them, without compensa­
tion ................................................................50-51
(1) Due process under the Fourteenth 

Amendment includes the proposition 
that property shall not he taken from 
one person hv State action, whether 
legislative, judicial or executive, and 
given to another, without compensa­
tion ........................................................ 50-51



V

IV. The decree of the State courts enjoining Israel 
Katz, having been entered without any evi­
dence whatsoever, is so plainly arbitrary and 
contrary to law, as to amount to a mere 
spoliation of the petitioner Katz and as a 
consequence was an arbitrary and capricious 
judicial seizure of his property and a denial 
of his rights without due process of law 
in violation of the 14th Amendment to the 
Federal Constitution .......................................52-54

V. The decree enjoining Supreme Liberty Life 
Insurance Company, as mortgagee, and 
Harry H. Pace, sued as its president, was 
manifestly erroneous and so unreasonable 
and arbitrary as to deny these petitioners 
of their rights and property without due 
process of law, particularly in that the agree­
ment sought to be enforced specifically ex­
empted mortgagees from its operation........54-55

VI. The enforcement by the courts below of a re­
strictive agreement which prohibits Negroes 
from owming property on account of race 
or color, is State action within the mean­
ing of the Fourteenth Amendment and there­
fore is in violation of said Amendment, in 
that it is a deprivation of rights and prop­
erty without due process of law and con­
stitutes a denial of equal protection of the 
laws .................................................................... 55-59
A. If the legislative branch as an arm of 

the State cannot separate persons in 
neighborhoods on the basis of color or 
race, as was held in the case of Buchanan 
v. Warley, 245 U. S. 60, it follows that the 
judicial branch as an arm of the State 
cannot do so .................................................... 55-59

PAG E



V I

B. The enforcement of the restrictive agree­
ment by the courts below abridges the 
rights, privileges and immunities of peti­
tioners as citizens of the United States 
in violation and the Fourteenth Amend­

PAGE

ment .............................................................. 55-59
Conclusion ..........................................................................  59

Table of Cases Cited.

Beck v. Lash, 303 111. 549................................................. 4
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 

U. S. 673......................................................... 2,26,27,36,56
Buchanan v. Warley, 245 U. S. 60............................... 25, 57
Burke v. Kleiman, 277 111. App. 519, 189 N. E. 372. .14,15
Carter v. Texas, 177 IT. S. 422.........................................4, 56
Caswell v. Caswell, 120 111. 377.......................................  4
Chase National Bank v. Norwalk, 291 U. S. 431.. .3, 26, 27
Chicago, Burlington & Quincy R. R. Co. v. Chicago,

166" U. S. 228..................... '........................... 3,4,50,51,55
Christopher v. Brusselback, 302 U. S. 500..............5,32,38
Colgate v. Harper, 296 U. S. 404...................................4,57
Creswill v. Knight of Pythias, 225 U. S. 246............. 4,53
Cutting v. Gilbert, 5 Blatchford, 259, 261...................  33
Davidson v. New Orleans, 96 U. S. 97, 102.................. 3
Delrnar Jockey Club v. Missouri, 210 U. S. 324.......... 3,4
Earle v. McVeigh, 91 U. S. 503..................................... 3,36
Ex parte Virginia, 100 U. S. 339................................... 4,56
Fayerweather v. R-itch, 195 U. S. 276...........................  29
Galpin v. Page, 18 Wall. 350 at 365............................. 41,43
Geter v. Hewitt, 22 Howard 364.....................................  48
Hague v. C. I. O., 307 U. S. 496.....................................  58
Hale v. Allison, 188 U. S. 56 at 77 et seq.......................  39
Hale v. Hale, 146 111. 227, 258.......................................3,32
Hamer v. New York Railways Co., 244 U. S. 266... .2, 34



V I  1

Hartford Life Ins. Co. v. Ibs, 237 U. S. 662.................  2
Hatfield v. King, 184 U. S. 163.......................................  48
Home Telegraph Co., etc. v. Los Angeles, 227 U. S.

278 ......................................................  ......................... 4
Kelley v. Gill, 254 U. S. 116 at 120...............................  39
Lee v. Hansberry, 372 111. 369, 24 N. E. (2d) 37.......... 1
Lord v. Veazie, 8 Howard 251.......................................4,48
Matthews v. Rodgers, 284 U. S. 521...............................  39
Michaels v. Post, 21 Wall. 298......................................... 4
Missouri Pacific Ry. v. Nebraska, 164 U. S. 403.......... 50
Norris v. Alabama, 294 U. S. 578...................................4 ,5 3
Old Wayne Life Ins. Co. v. McDonough, 204

u - S. 8 ....................................................................... 5,41,44
Penn oyer v. Neff, 95 U. S. 714.....................................  3
People v. Sterling, 357 111. 354.......................................  4

Postal Cable Tel. Co. v. Newport, 247 U. S. 464.. .2, 26,36 
St. Louis, Iron Mountain & Southern Ry. Co. v. Mc-

Knight, 244 U. S. 368 at 375....................................... 39
Saunders v. Poland Park Co., 198 Atl. 269 (Md. Ct.

of Appeals) ....................................................................  32
Scott v. Donald, 165 U. S. 107.........................................  2
Scott v. McNeal, 154 U. S. 34......................... 3,5,33,41,56
Simons v. Craft, 182 U. S. 437.......................................  3
Smith v. Swormstedt, 76 Howard 288........................... 2,32
Strauder v. West Virginia, 100 U. S. 303....................4,55
Thompson v. Whitman, 18 Wall. 457, at 468-470.......... 44
Truax v. Corrigan, 257 U. S. 321................................... 4,53
Wabash Railway Co. v. Adelbert College, 208 U. S.

38 .....................................................................2,30,32,34,36
Ward v. Board of County Comm’rs, 253 U. S. 17 . . . .  3
Weberpals v. Jenny, 300 111. 156....................................3,32
Whitney v. Mayo, 15 111. 251...........................................  39
Williams v. Gibbes, 17 Howard 239...............................  3
Windsor v. McVeigh, 93 U. S. 274...................2,26,27,31,36

PAGE



y in

Text Books Cited.
page

Pomeroy, Equity Jurisprudence, 4th Ed. (1918),
Vol. I, Sec. 268, pages 498-9........................................ 32

Statutes Cited.

Statute of 13 Edward l.c.l. De Donis (Mortmain Acts) 58 

Law Review Articles.

34 Harvard Law Review 639 at 651-3........................... 58
Illinois Law Review, Yol. 25 (June, 1940), No. 2, 

pages 213-18 ..................................................................  38
University of Chicago Law Review, Vol. 7, No. 3 

(April, 1940) .........................   38



IN  T H E

Supreme Court of the United States
October T erm, A. D. 1940

No. 2 9

CARL A. HANSBERRY, NANNIE L. HANSBERRY,
et al.,

Petitioners,
vs.

ANNA M. LEE, EDWARD L. GOVANUS, ESTHER 
GOVANUS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE 
STATE OF ILLINOIS.

BRIEF OF PETITIONERS.

OPINION OF THE COURT BELOW. 
(Majority and Dissenting Opinion.)

The opinion of the Supreme Court of Illinois is re­
ported in 372 111., page 369, of the Illinois Reports, and 
also in 24 N. E. 2nd, page 37, as well as in the record 
filed in this cause (R. 327-336).



2

JURISDICTIONAL STATEMENT.

1. The jurisdiction of this Court is based upon Section 
237b of the Judicial Code as amended by the Act of 
February 13, 1925; Volume 8, Fed. Code Annotated 
(FCA), Title 28. Judicial Code, Section 344(b).

The Supreme Court of Illinois, on October 10, 1939, by 
a divided court, affirmed the judgment or decree of the 
Circuit Court of Cook County, Illinois, in favor of the 
respondents herein and against the petitioners. (Volume 
372 111., page 369, 24 N. E. (2d) 37.) Petition for rehear­
ing was later filed by petitioners within the time allowed 
by the rules of the Supreme Court of Illinois on the 4th 
day of November, 1939 (R. 337), and afterwards was 
denied on December 13, 1939, and the petition for cer­
tiorari was filed in this court within three months after 
the denial of the petition for rehearing in the Supreme 
Court of Illinois.

The affirmance of the decree of the trial court in its 
wrongful application of the doctrine of res judicata de­
nied the petitioners notice and a real opportunity to 
appear, to he heard, and to defend, and violated the 
petitioners’ rights to due process of law under the 14th 
Amendment to the Federal Constitution under which 
Amendment the petitioners specially set up and claimed 
certain rights, titles, privileges and immunities. See Postal 
Cable Telegraph Co. v. Newport, 247 U. S. 464 at 476; 
38 S. Ot. 566, 62 L. Ed. 1215; Wabash Railway Co. v. 
Adelbert College, 208 U. S. 38 at 57-58 and 59, 28 S. Ct. 
182, 52 L. Ed. 379; Hartford Life Ins. Co. v. Ibs, 237 
U. S. 662 at 671; Smith v. Swormstedt, 16 Howard 288 
at 303; Hamer v. New York Railways Co., 244 U. S. 266 
at 273; Rrinkerhoff-Faris Trust & Savings Co. v. Hill, 
281 U. S. 673 at 682; Scott v. Donald, 165 U. S. 107 at



3

115 to 117; Pennoyer v. Neff, 95 U. S. 714 at 733; Scott 
v. McNeal, 154 U. S. 34 at 45 and 46; Williams v. Gibbes, 
17 Howard 239 at 254, 257; Simon v. Craft, 182 U. S. 437; 
Ward v. Board of County Commissioners, 253 U. S. 17 
at 22; Chase National Bank v. Norwalk, 291 U. S. 431 at 
438; Windsor v. McVeigh, 93 U. S. 274 at 277; Earle v. 
McVeigh, 91 U. S. 503; Rale v. Hale, 146 111. 227, 258; 
Weber pals v. Jenny, 300 111. 156.

The affirmance of the decree of the trial court neces­
sarily deprived the Hansberrys of their rights and prop­
erty without due process of law in violation of the 14th 
Amendment to the Federal Constitution because no com­
pensation was provided for them in or by said decree 
thereby amounting to a spoliation and said Hansberrys 
specially set up and claimed rights, privileges, titles and 
immunities as citizens of the United States of America 
under Section One of the 14th Amendment to the Fed­
eral Constitution which was thereby drawn in question; 
and moreover the said Hansberrys, petitioners, were de­
nied due process of law and the equal protection of the 
laws, and their rights, privileges, and immunities as citi­
zens of the United States were abridged. See Delmar 
Jockey Club in Missouri, 210 U. S. 324 at 335. Chicago 
Burlington and Quincy R. R. Co. v. Chicago, 166 U. S. 
226; Dgvidson v. New Orleans, 96 U. S. 97, 102.

The petitioners set up and claimed specially under the 
14th Amendment to the Federal Constitution certain 
rights, titles, privileges and immunities which they as­
serted were denied and abridged by the enforcement, by 
the state’s judicial officers and courts, of a harsh, op­
pressive and discriminatory property owner’s covenant, 
and the 14th Amendment to the Federal Constitution was 
thereby necessarily drawn in question by the decree and 
judgment of the Illinois Supreme Court in sustaining



4

the lower court's decree. See Chicago, Burlington & 
Quincy R. R. Co. v. Chicago, 166 U. S. 226 at 233-35; Home 
Telegraph, etc. v. Los Angeles, 227 U. S. 278; Ex parte 
Virginia, 100 U. S. 339; Strauder v. West Virginia, 100 
U. S. 303; Carter v. Texas, 177 U. S. 442; Colgate v. Har­
vey, 296 U. S. 404 at 430-433.

The petitioners’ rights to due process of law were 
denied and abridged by the affirmance of the decree of 
the trial court which reluctantly held that Burke v. Klei­
nian, though a fraudulent and collusive suit, was res 
judicata and therefore binding upon the petitioners in 
the instant case. See Lord v. Veazie, 8 Howard 251 at 
255; Michaels v. Post, 21 Wall. 298; Caswell v. Caswell, 
120 111. 377; Beck v. Lash, 303 111. 549; People v. Sterling, 
357 111. 354.

The rights of the petitioner Katz to due process of law 
were denied and abridged in that the decree enjoined 
said Katz without any evidence whatsoever in support 
of said injunction so that said decree amounted to an 
arbitrary and capricious judicial seizure of Katz’ prop­
erty. See Chicago Burlington and Quincy R. R. Co. v. 
Chicago, 166 U. S. 226 at 233-235; Delrnar Jockey Club v. 
Missouri, 210 U. S. 324 at 335; Norris v. Alabama, 294 
U. S. 578 at 590; Creswill v. Knights of Pythias, 225 U. S. 
246 at 261; Truax v. Corrigan, 257 U. S. 312 at 324-5.

The petitioners’ rights to due process of law were de­
nied and abridged in that the decree of Burke v. Kleiman, 
a void judgment or decree, was pleaded and sustained 
as res judicata against them. The decree in the instant 
case found that Burke v. Kleiman was a class suit and 
therefore binding upon the petitioners herein, although 
no class in fact ever existed, as shown by the finding of 
the trial chancellor both in his oral opinion (R. 192-193) 
and decree that the agreement sought to be specifically



5

enforced was executed by 54 per cent of tbe frontage 
instead of 95 per cent, as required by its own terms. 
(R. 78.) Tbe court in Burke v. Kleinian lacked jurisdic­
tion of tbe parties and the subject matter because tbe 
agreement sought to be enforced bad never become opera­
tive by its own terms. See Christopher v. Brusselback, 
302 U. S. 500; Old Wayne Life A ss’n. of Ind. v. Mc­
Donough, 204 U. S. 8 at 15-17, 23; Scott v. McNeal, 154 
U. S. 34 at 45, 46.

The petitioners raised the Federal questions sought 
to be reviewed by filing their several and respective mo­
tions to strike and dismiss the respondents’ suit, in which 
they contended that the enforcement of the restrictive 
agreement violated the 14th Amendment and Sections 
1977 and 1978 of the Revised Statutes and was contrary 
to the aims, purposes and objects as expressed in the 
Federal Constitution (R. 15-19). The trial court over­
ruled the petitioners’ several and respective motions to 
strike and dismiss (R. 20).

The petitioners then filed their several and respective 
answers setting up the same Federal questions (R. 23-33, 
36-41, 56-71). The petitioners likewise filed their several 
and respective motions to dissolve (R. 34-35), again 
asserting the Federal questions sought to be reviewed 
here. To the defendants’ plea of res judicata raised in 
their reply, the defendants filed their several and re­
spective rejoinders to said reply, denying that they had 
been estopped upon the basis of said decree of Burke v. 
Kleiman, and further asserted that the sustaining of a 
plea of res judicata and any estoppel against them would 
deny them of due process of law and the equal protection 
of the laws in violation of the 14th Amendment (R. 51, 
53, 65-71, 71-72).

The trial chancellor in his decree (R. 72-88), sustained



6

the plea of res judicata in the reply and sustained the 
objections to the defendants’ answers in which they had 
asserted the Federal Constitutional questions above set 
up (R. 82, 86).

Upon the trial of the cause the defendants objected to 
the introduction of Plaintiffs’ Exhibit No. 5 (R. 142-145, 
315-319) (which was the alleged restrictive agreement), 
on the Federal grounds above asserted. The trial court 
overruled said objections and allowed the introduction 
of the said restrictive agreement in evidence against 
the petitioners (R. 145). The trial court in its decree 
found that the enforcement of the restrictive agreement 
did not violate any article of the Constitution of the 
United States and is not unconstitutional; that it was not 
against public welfare; that it did not deprive the peti­
tioners of any of their equal or civil rights nor did it 
deprive the petitioners or Negroes as a class, of due 
process of law under the Federal Constitution; and then 
proceeded to sustain the plea of res judicata as well as 
the objections of the plaintiffs to the answers of the peti­
tioners (R. 86).

The petitioners again raised the above mentioned Fed­
eral Constitutional questions in their appeal to the Su­
preme Court of Illinois, and as provided in the rules 
of the Supreme Court of Illinois, assigned these errors 
in a portion of their brief entitled “ Errors relied upon 
for reversal.”  The petition for rehearing in the Supreme 
Court of Illinois, raised the same Federal Constitutional 
question.

The affirmance by the Supreme Court of Illinois, of the 
decree of the trial chancellor who had ruled adversely 
on the Federal Constitutional questions raised by the peti­
tioners, necessarily involved substantial Federal ques­
tions, the disposition of which were necessary to a deter­
mination of the case.



7

STATEMENT OF THE CASE.

Thes respondents,, Anna M. Lee, Edward L. Govanus, 
Esther Govanus, Louise G. Anderson, Lyman M. Ander­
son and Kathryn Luttrell (plaintiffs helow), brought an 
action in the Circuit Court of Cook County, Illinois for 
the purpose of enforcing a certain “ restrictive agree­
ment”  (R. 2-6) purporting to involve 500 or more parcels 
of real estate owned by 500 or more owners of a certain 
section in the City o f Chicago. The area covered by the 
“ restrictive agreement”  consists of approximately 
twenty-seven blocks and parts of blocks between Sixtieth 
and Sixty-third Streets and between Cottage Grove and 
South Park Avenues in the City of Chicago, which said 
area is bounded on the south by approximately 12,000 
colored people (R. 181), on the north and west by approx­
imately 50,000 colored people (R. 176, 181-182), on the 
north by Washington Park, used predominantly by col­
ored people (R. 182). More than 125 colored families have 
lived within said area for periods ranging from three 
to five years prior to the commencement of this action 
(R. 58). The area “ constitutes a ivhite pocket within 
a colored area'' (R. 119) and is entirely surrounded by 
colored people; it includes South Park Avenue which 
runs through and is adjacent to the heart of the 
South Side district in Chicago occupied by at least 
150,000 colored people. The area in question is not sep­
arated from the territory generally occupied by colored 
people in Chicago, but is contiguous to the so-called 
colored district that has steadily, since 1914, developed 
southward from Twenty-second Street. As the colored 
population increased, the area continued to expand south­
ward to Sixtieth Street where the “ restricted”  area be­
gins and then, as housing facilities became more scarce,



8

the population penetrated further south and east of the 
said, restricted area beyond Sixty-third Street—the end 
of the said “ restricted”  area— leaving said area prac­
tically encircled by colored people.

Prior to the year 1914 the community occupied pri­
marily by Negroes did not extend beyond Twenty-second 
Street south of the Chicago Loop district (R. 180-183). 
Beginning in 1914 Negro industrial workers came north 
in large numbers and to the City of Chicago because of 
the cutting off of European immigration and the excessive 
demands for workers growing out of the World War. 
This South Side community gradually extended until the 
year 1928 when it had reached Sixty-seventh Street on 
the south, Cottage Grove Avenue on the east and Went­
worth Avenue on the west (R. 180-183). The substance 
of this agreement in controversy was that no part of the 
property purported to be restricted should be sold, leased 
to, or permitted to be occupied by any person of the 
colored race prior to January 11, 1948, or thereafter, 
unless said “ restrictive agreement”  should be abrogated 
by the owners of 75 per cent of the frontage. The agree­
ment, among other things, contained the following pro­
visions :

“ This agreement and the restrictions therein con­
tained, shall be of no force or effect unless this 
agreement or a substantially similar agreement shall 
be signed by the owners above enumerated of 95 per- 
centum of the frontage above described or their heirs 
and assigns, and recorded in the office of the Recorder 
of Deeds of Cook County, Illinois, on or before De­
cember 31, 1928.”  (R. 3.)

The complaint, as amended, alleged that the owners of 
95 per cent of the frontage signed the restrictive agree­
ment, and that it was recorded February 1, 1928. It fur­
ther alleged a conspiracy on the part of the petitioners



9

to destroy the agreement by selling or leasing property 
in the restricted area to Negroes. It charged particularly 
that there had been a conspiracy between the petitioners, 
James J. Burke, Jay B. Crook, Harry H. Pace, The Su­
preme Liberty Life Insurance Company, a corporation, 
and the Hansberrys, to violate said restrictive agreement 
by the acquisition and purchase of the premises at 6140 
Rhodes Avenue by the said Hansberrys through the means 
of Jay B. Crook (R. 7-12). The complaint further charges 
that the petitioner, Israel Katz, a white man, had listed 
for sale his property at 6018 Vernon Avenue, with James
J. Burke, a white real estate broker, and had made 
threats to sell his property to Negroes (R. 12-13).

The complaint further alleged that the several re­
spondents were parties to and signers of the alleged 
restrictive agreement; that they were the several owners 
of certain properties in said area and, further, that 
their real estate would be irreparably damaged by reason 
of the violation of the agreement (R. 12).

The respondents sought a temporary injunction which 
petitioners resisted by motions to strike the complaint 
and dismiss the suit and by oral argument in support 
thereof (R. 15-19).

On July 8, 1937, Judge Michael Peinberg, the trial 
chancellor ,entered, over the objections of petitioners, a 
temporary mandatory injunction, requiring the Hans­
berrys to move from the premises at 6140 Rhodes Avenue, 
and ordering a writ of assistance to issue upon failure 
of said Hansberrys to move from said premises (R. 20- 
21). Said order of injunction likewise found that the 
Hansberrys were unlawfully in title to the aforesaid 
premises at 6140 Rhodes Avenue (R. 22), although said 
cause had not been heard upon the merits, and although 
said case was not at issue on the pleadings. The peti­



1 0

tioner, Katz, was likewise enjoined from selling or leas­
ing his property to colored people (R. 21).

The respondents filed their several and respective 
sworn and verified answers (R. 23-33, 36-41, 56-64) cate­
gorically and specifically denying the allegations of the 
complaint as to the charges of conspiracy, and denying 
that the owners of 95 per cent of the frontage described 
in the restrictive agreement had signed the agreement 
and asserting that the agreement never went into force 
or effect. The petitioners in their answers (R. 23-33, 
36-41, 56-69) likewise set up several affirmative defenses 
contending that the alleged restrictive agreement was in­
valid and void, was an unlawful restraint on alienation, 
was also against the public policy of the State of Illinois 
and the United States of America, and that the enforce­
ment of the restrictive agreement by the courts of the 
State of Illinois, would deprive the defendants of their 
liberty, their freedom of contract, their rights and their 
property without due process of law, and would likewise 
deprive the petitioners of the equal protection of the law, 
and would abridge the privileges and immunities of the 
petitioners as citizens of the United States of America, 
in violation of the 14th Amendment to the United States 
Constitution (R. 23, 28, 29, 33, 62).

The petitioners in their several and respective answers 
likewise denied that the alleged restrictive agreement 
was a covenant running with the land, hut asserted that 
it was merely a personal covenant against persons on 
account of their race and color. Petitioners further denied 
that respondents were bringing a representative suit, and 
stated that there had been such a change in the character 
of the neighborhood that it would be inequitable to en­
force any such alleged agreement (R. 23-33, 36-41, 56- 
64). The petitioner, Katz, denied the execution and ac-



1 1

knowledgment of the agreement and stated under oath 
that his signature to said alleged agreement had been 

* obtained by fraud and trickery (R. 60-61, 172).
After the filing by the petitioners of their several 

answers, motions to dissolve (R. 34-35) were filed by 
them, together with affidavits (R. 36) supporting denial 
of the due execution and acknowledgment of the agree­
ment and of compliance with conditions precedent con­
tained in said agreement. To these defenses respondents 
replied that these questions were res judicata, having been 
determined in the case of Burke v. Kleiman, No. 567687, 
in the Superior Court of Cook County, Illinois (R. 44). 
The chancellor, Judge George Bristow, reserved rulings 
on the motions to dissolve of the petitioners and the plea 
of res judicata of respondents until a hearing on the 
merits (R. 54). The petitioners filed additional pleadings 
called rejoinders (R. 51-53, 65-71, 72), denying the rights 
of the respondents to plead estoppel by verdict, or res 
judicata and denying that the case or decree of Burke v. 
Kleiman could be lawfully raised as estoppel by judgment 
or as res judicata and stating that the application of res 
judicata would deprive them of their rights and property 
without due process of law, in violation of the 14th 
Amendment to the Federal Constitution.

Proof adduced at the trial on behalf of the petitioners 
showed that this alleged restrictive agreement never be­
came operative or in full force and effect by its own 
terms; that the owners of not more than 54 per cent of 
the frontage involved executed the restrictive agreement 
(R. 150-151, 158-159, 185), although the agreement itself 
stated that it should not become operative until the own­
ers of 95 per cent of the frontage executed it (R. 3). The 
proof further showed that none of the signatures to the 
alleged agreement was properly acknowledged, according



1 2

to the requirements of the laws of the State of Illinois 
(R. 144, 145, 189). The proof also showed that one of the 
signatories to the alleged covenant was Eva Somerman, 
who, as a witness for the respondents, said she signed 
the alleged restrictive agreement but did not acknowledge 
it (R. 92). The property involved in this suit and which 
was bought by Crook from the First National Bank of 
Englewood and thereafter sold by Crook to Hansberry, 
was owned by said Eva Somerman at the time the alleged 
agreement was executed by her (R. 92).

Proof further showed that the petitioner, Israel Katz, 
signed his name to a sheet of paper which was pre­
sented to him by a man who told him he was getting up 
a list of signatures for the improvement of the neigh­
borhood. No acknowledgment was taken of Katz’ signa­
ture by a Notary Public nor did the person who obtained 
his signature mention anything about a restriction against 
the sale of Katz’ property. There is no evidence that 
Katz ever had any conversation with James Joseph 
Burke about the sale of his property at 6018 Vernon 
Avenue (R. 172), and the only evidence in the record as 
to any threat on the part of petitioner Katz to sell 
his property is to the effect that when he appeared at 
a hearing before the Department of Education and Regis­
tration in a proceeding- against one William I. Sexton, 
a real estate broker, he was asked whether he would 
sell his property at 6018 Vernon Avenue to colored people 
and in reply, according to the testimony of Harry E. 
Raymond, one of the attorneys representing respondents 
in the court below, Katz said, “ Yes, I would. I would sell 
it to anybody if I could get a buyer to purchase i t ; I would 
sell it now if I could.”  (R. 122.)

The proof further showed that the petitioner, Supreme 
Liberty Life Insurance Company, is an old-line legal



13

reserve life insurance company and that it made a first 
mortgage of $4,400.00 to Jay B. Crook and his wife on 
the premises here involved, and this loan was made in 
the regular course of business; that transactions involved 
in connection with this loan were all conducted by Crook 
with the Company officials; that neither Burke nor Hans- 
berry participated therein. The testimony also showed 
that, among other things, as a part of its business the 
insurance company makes mortgage loans on property 
and that during the year 1937 approximately more than 
$144,000.00 worth of mortgages were made on premises 
of similar nature in the South Side community. The 
record also showed that prior to the making of the loan 
to Crook, the insurance company had the property ap­
praised by several landowners in the City of Chicago 
who were experienced in the valuation of property and 
that the appraised value of the property ranged from 
$7,000.00 to $9,000.00. The petitioner, Harry H. Pace, 
is sued herein as the president of said Supreme Liberty 
Life Insurance Company (R. 13).

At the close of the evidence, the chancellor found that 
the owners of only about 54 per cent of the frontage had 
signed the agreement, which agreement itself contained 
the condition precedent that it should be of no force or 
effect unless signed by the owners of 95 per cent of 
the frontage (R. 78, 191-193, 198), but the chancellor 
in spite of his finding that the agreement was invalid 
by its own terms and had never come into effect, never­
theless, “ reluctantly”  held the question of the execution 
and effective validity of the agreement was res judicata 
by virtue of the decree in Burke v. Kleiman, and further 
held Burke v. Kleiman to be a representative suit binding 
upon the petitioners in the instant case. (This case of 
Burke v. Kleiman was affirmed in 1934 by the Appellate



14

Court of Illinois and reported in Yol. 277 at page 519, 
189 N. E. 372.)

Notwithstanding the decree, the trial chancellor in his 
formal opinion (R. 191-194) rendered at the close of 
the case, used the following language:

“ In other words, there is an invalid agreement 
which is now sought to be enforced. And the answer 
that the plaintiffs make to that contention is not to 
try to show that it was properly signed by the 
requisite number of property owners, but that its 
validity has already been sustained by several courts. 
* * * We have a man named Burke, whose person­
ality and activity enter into the picture. It is urged, 
and I think Avith a good deal of merit, that the law­
suit (Burke v. Kleinian) which he brought to test 
out the validity of the agreement Avas more or less 
a dummy proceeding, of which can be easily seen 
that although it appears on the face of which to be 
representative and class in its character, still it 
(Burke v. Kleiman) Avas concceived by him and 
prosecuted by him for the sole purpose of establish­
ing the integrity and invulnerability of the district 
that is under the covenant; in other words, to make 
it unassailable. * * # And he in effect, says through 
himself and through those he was working vuth to 
bring about the destruction of this agreement, he 
says in effect, that lawsuit (Burke v. Kleiman) that 
I brought was a fraud, and I had no authority to 
represent the class, and I was not representing the 
class. It was my OAvn personal lawsuit. I obtained 
the stipulation of the facts that the agreement con­
tained the signatures of more than 95 per cent of 
the frontage, and that was all a fraud; and we know 
it was a fraud because the proof now shows that 
there wasn’t 95 per cent. * * * He committed a 
fraud when he brought this lawsuit.”  (Burke v. 
Kleiman.)

The follom ng are the material and pertinent facts in 
respect to the proceedings and the decree of Burke v. Klei­
man (R. 218-246) pleaded by respondents as res judicata:



15

In October, 1932, Olive Ida Burke (wife of James J. 
Burke, one of the petitioners herein), owning a parcel of 
property at 6039 Vemon Avenue, Chicago, filed a suit 
in equity (R. 217, 218), purportedly on her own behalf 
and on behalf of all other property owners adversely 
affected by violation of the agreement therein mentioned, 
against Isaac Kleiman, owner of the premises at 417 
E. Sixtieth Street, Chicago, Illinois (not the p roperty  
involved in the instant case), Samuel Kleiman, owner of 
a mortgage note on said premises, Charles Sopkins, 
Trustee for the benefit of the owner of the mortgage 
note, and James Lowell Hall, a Negro tenant in said 
building, to enforce specifically by injunction, the same 
agreement sought to be enforced in the instant case.

No testimony was taken or proof adduced showing that 
the required frontage consent of 95 per cent had ever 
been obtained, but a stipulation was signed by Olive Ida 
Burke and by Charles J. Sopkins, an attorney who pur­
ported to act for himself and the other defendants (R. 
46, 236). They merely stipulated that 95 per cent o f the 
owners of the property in said restricted area had signed, 
sealed and acknowledged said agreement (not the owners 
of 95 p er cent o f  fron tage as required by the agreem ent) 
and that it ivas in full force  and effect (R. 46-47, 185, 
236).

Prior to the execution of the above stipulation there 
was another stipulation entered into by the same counsel 
to the effect that the cause would be heard upon agreed 
facts to be stipulated without the necessity of taking oral 
evidence (R. 185).

A decree was entered in October, 1933, declaring said 
restrictive agreement to be in full force and effect and 
that it was a covenant running with the land and binding 
upon the defendants in that suit (R. 236-246), but the 
court did not find that it was a representative suit.



16

There were no other property owners or signers made 
parties defendant in the case of Burke v. Kleiman, except 
said Isaac Kleiman. The only property involved by the 
complaint was the property of Isaac Kleiman at 417 E. 
Sixtieth Street. Neither the petitioners nor any of their 
grantors were made parties to the proceedings of Burke 
v. Kleiman. There was no notice by publication or other­
wise given to any of the other 500 or more property 
owners or signatories to the said alleged restrictive agree­
ment. The case was merely one where one property 
owner, Olive Ida Burke, not a signer of the restrictive 
agreement, was suing another property owner, Isaac 
Kleiman, not a signer of the agreement, to enforce the 
restrictive agreement (R. 223, 224). The prayer of the 
complaint did not ask that the decree be binding upon 
any except the defendants against whom its enforcement 
was sought (R. 227-228).

Burke, former president of the Woodlawn Property 
Owners Association which filed the Burke v. Kleiman 
case, charged in his answer (R. 31-32) that the invalidity 
of the agreement was known to the Association at the 
time the several suits were conducted by it to enforce 
the agreement, which allegations were never rebutted by 
the respondents in the instant suit.

In the Burke v. Kleiman case, neither the due execu­
tion and acknowledgment of the agreement, the compli­
ance with the conditions precedent contained therein, nor 
the validity of the agreement itself, were put in issue by 
the answers (R. 230-235) of the several defendants there­
in but their answers were confined to the sole unsubstan­
tial and frivolous defense that violations in respect to 
three or four parcels, included in an agreement covering 
500 or more parcels, constituted a change in the character 
of the neighborhood so as to make it inequitable to en­
force the covenant (R. 230-235).



17

In the instant ease, Isaac Kleiman and James Lowell 
Hall, parties defendant in the case of Burke v. Kleiman, 
both appeared and testified that they had not employed 
or authorized any lawyer to represent them in the case 
of Burke v. Kleiman, nor did they have any knowledge 
of any stipulation of facts, nor did they authorize its 
signing (R. 171). The chancellor in the court below in the 
instant case, after competent proof, found that the stipu­
lation was a false stipulation, and that the case and pro­
ceedings of Burke v. Kleiman were collusive and fraudu­
lent, and that the whole case was tainted with fraud (R. 
84, 193). The affidavit (R. 203-6) executed by Fred L. 
Helman, the individual who attempted to create the re­
strictive agreement, shows that as early as February 1, 
1929, which was three and a half years prior to the filing 
of the suit of Burke v. Kleiman, it was known by the 
Woodlawn Property Owners Association and its officials 
of which said Fred L. Helman was the executive secretary, 
that the alleged restrictive agreement was invalid accord­
ing to its own terms, because the required frontage con­
sents had not been obtained (R-. 203-6). The record shows 
that the same Fred L. Helman, at Notary Public, took 
the acknowledgment of Olive Ida Burke to the complaint 
in the case of Burke v. Kleiman (R. 229-230). Helman’s 
affidavit shows that it was known, at the time of the filing 
of said suit (October, 1932) by him and other officials 
of the Woodlawn Property Owners Association, that said 
restrictive agreement was invalid and had never come 
into force and effect according to its own terms, and that 
this knowledge was acquired three and a half years prior 
thereto.

Helman’s affidavit likewise shows that he conferred 
with various officials of the Woodlawn Property Owners 
Association in regard to the filing of said case of Burke



1 8

v. Kleiman, and that he directed or caused to be paid 
to the attorneys representing Olive Ida Burke, the court 
costs for the filing of said case, and that he generally 
supervised the prosecution of said case up to the year 
1933 when he severed his connection.

The decree in Burke v. Kleiman makes no mention of 
any representative or class suit (R. 236-246). Nor does 
the Appellate Court on appeal make any reference to 
its being a representative or class suit. (277 111. App. 519, 
189 N. E. 372.)

In spite of the finding that the case and proceedings 
in Burke v. Kleiman were tainted with fraud and collu­
sion, Chancellor Bristow in the nisi prius court, never­
theless reluctantly sustained the respondents’ plea of res 
judicata (R. 191, 194) and thereupon in his decree (R. 72- 
88) sustained the objections of the respondents to the 
petitioners’ answers and proceeded to declare the convey­
ance to the Hansberrys, void, and directed that upon the 
failure of the Hansberrys to convey their property to 
a white person, that a Master in Chancery of the court 
convey the same to Jay B. Crook, but said decree (R. 88) 
in no manner whatsoever provided for compensation to 
the Hansberrys. The chancellor enjoined Burke from 
selling or leasing any real estate within the alleged re­
strictive area to Negroes or to white persons for the pur­
pose of selling or leasing to Negroes; enjoined Katz from 
selling or leasing his building at 6018 Vernon Avenue to 
Negroes; enjoined Pace and the Supreme Liberty Life 
Insurance Company from making any further loans on 
the real estate in the restricted area.

Inasmuch as a freehold was involved, the petitioners 
appealed directly to tire Supreme Court of Illinois, being 
the highest court of the State. The Supreme Court of 
Illinois affirmed the judgment of the Circuit Court of



19

Cook County and thereupon, after denial of petition for 
rehearing, petitioners on March 11, 1940, filed a petition 
for certiorari in this Court to review the judgment of the 
Supreme Court of Illinois. Certiorari was granted by 
this Court on April 22, 1940.

SPECIFICATIONS OF ERRORS.

The Supreme Court of Illinois erred:
1. In affirming the decree of the Circuit Court of Cook 

County, Illinois, which found the case of Burke v. Klei­
nian to be a representative or class action, and in sus­
taining said decree as res judicata against the petitioners 
in the instant case.

(a) In affirming the decree of the Circuit Court of Cook 
County, Illinois, which found that Burke v. Kleiman was 
a class suit, although it found also that there never was 
a valid agreement and never in fact any class, and as a 
consequence, erred in sustaining the plea of res judicata 
on the basis of the decree of Burke v. Kleiman.

(b) And erred in not finding that the decree of Burke 
v. Kleiman was fraudulent, void, and entered without jur­
isdiction to bind any of the parties thereto or the peti­
tioners.

2. In sustaining the plea of res judicata upon the basis 
of a decree and proceedings fraudulently and collusively 
brought and obtained.

3. In enforcing the harsh, oppressive and discrimina­
tory restrictive agreement in deprivation of the petition­
ers’ rights and property without due process of law, 
thereby denying the equal protection of the laws and 
abridging their privileges and immunities in violation of 
the 14th Amendment to the United States Constitution.



2 0

4. In enforcing the restrictive agreement against the 
petitioners in violation of Section 1977 and 1978 of the 
Revised United States Statutes.

5. In affirming the decree which deprived the Hans- 
berrys of their property without compensation, in viola­
tion of their rights to due process of law under the 14th 
Amendment to the Federal Constitution.

6. In affirming the decree enjoining Israel Katz in an 
arbitrary and capricious manner, and without any evi­
dence whatsoever, in deprivation of his rights and prop­
erty without due process of law in violation of the 14th 
Amendment to the Federal Constitution.

7. In affirming the decree which enforced a harsh, op­
pressive and discriminatory restrictive agreement, which 
is against the public policy of the United States as ex­
pressed in Sections 1977 and 1978 of the Revised United 
States Statutes, the Federal Bill of Rights and the 14th 
Amendment, and which is likewise contrary to the natural 
and inalienable rights of the petitioners as citizens of the 
United States, contrary to the general welfare, and con­
trary to the aims, purposes and objects and the Federal 
Constitution as expressed in its preamble to the 14th 
Amendment.

8. In affirming the decree enjoining Supreme Liberty 
Life Insurance Company, mortgagee, and Harry H. Pace, 
sued as its president, from making mortgage loans in said 
restricted area, although the agreement sought to be en­
forced expressly exempts mortgagees from its operation.



2 1

SUMMARY OF THE ARGUMENT.

I .

The affirmance by the State Supreme Court of the de­
cree of the trial court in its wrongful application of the 
doctrine of res judicata denied the petitioners the benefit 
of notice in the instant suit and a real opportunity to 
appear, to be heard, and to defend, and so deprived each 
of the petitioners of his property without due process of 
law and denied to each of them the equal protection of 
the laws.

A.

The case of Burke v. Kleinian, held by the State Su­
preme Court to be a class or representative suit and 
res judicata against all the petitioners as to execution, 
acknowledgment and compliance with the conditions prece­
dent to the restrictive agreement coming into effect, Avas 
not a class or representative suit. The case was one in 
which one property owner was suing another property 
owner to enforce the agreement to the injury and detri­
ment of the latter and where there was a dispute, con­
flict of interest and diversity of opinion as to the en­
forcement of the agreement.

A property OAAmers’ restrictive agreement between 500 
or more different OAvners owning 500 or more different and 
dissimilar parcels of real estate cannot be the subject mat­
ter of a class or representative suit, there being no com­
mon subject matter and no identity of interest among 
them.

The issue as to whether a property owner is bound is 
as to each inherently personal in respect to individual



2 2

execution and acknowledgment, and in respect to which no 
property owner can he represented.

In particular, among the personal defenses available to 
each owner in respect to the instant restrictive agreement 
was the defense that the undertaking of the owner was 
that he should not be bound unless the owners of 95 per 
cent of the frontage joined in the agreement. This personal 
defense is foreclosed by the use of the representative suit 
device.

A  representative or class suit if permitted and sustained 
in such a case would destroy essentially these personal de­
fenses, namely, forgery of signatures, fraud and trickery 
in obtaining signatures, alteration of the instrument, laches, 
waiver, abandonment, estoppel, and change in the charac­
ter of the neighborhood in respect to each individual prop­
erty owner which would render inequitable the enforcement 
of the purported agreement.

B .

The purported agreement involved in Burke v. Kleiman 
and in the instant suit provided that it was to he null and 
void and of no force and effect unless signed, sealed and 
acknowledged by the owners of 95 per cent of the front­
age. The proof in the instant case, as found by the trial 
chancellor, showed that this condition precedent to valid­
ity was not complied with; consequently, no agreement 
ever came into force or effect and there was no class to 
be represented by anyone. The court had no jurisdiction 
to bind the petitioners and their privies who were not 
parties and not served with summons or process in said 
cause. The decree of Burke v. Kleiman was therefore 
void and could not he pleaded as res judicata against 
these petitioners.



23

H.

The petitioners were deprived of their rights and prop­
erty without due process of law by the judgment of the 
Supreme Court of the State of Illinois in sustaining the 
decree of the lower court which applied against the^peti- 
tioners as res judicata the case of Burke v. Kleiman, the 
proceedings and decree, in which were fraudulently and 
collusively brought and maintained as found by the trial 
chancellor.

There was fraud going to the jurisdiction of the court 
in the very basic and essential allegation that there was a 
valid agreement that had actually been signed by the 
necessary owners of 95 per cent of the frontage, and 
fraud in the jurisdictional allegation that there was a class 
to be represented when, in fact, no such class ever existed. 
Moreover, the said proceedings were fraudulently main­
tained by means of a false stipulation of facts that the 
required frontage consent had been obtained.

The false stipulation of facts was preceded by stipula­
tion of counsel in said cause that a stipulation of fact 
would be entered into in lieu of evidence and tbe case 
tried upon the pleadings without the necessity of any 
proof of any sort.

Such a fraudulent proceeding and decree cannot be res 
judicata against anyone.

III.

The decree of the State Courts which deprived the 
Hansberrys of their property without compensation was 
so arbitrary and contrary to law as to amount to a mere 
spoliation in violation of their rights to due process of 
law under the 14th Amendment to the Federal Consti­
tution.



24

A .

The effect of the decree was to take property away from 
the petitioners, Hansberrys, and give it to Crook, their 
predecessor in title and an alleged co-conspirator with 
them, without compensation.

(1) Due process under the Fourtenth Amendment in­
cludes the proposition that property shall not he taken 
from one person by State action, whether legislative, ju­
dicial or executive, and given to another, without com­
pensation.

IV.

The decree of the State Courts enjoining Israel Katz, 
having been entered without any evidence whatsoever, 
is so plainly arbitrary and contrary to law, as to amount 
to a mere spoliation of the petitioner Katz and as a con­
sequence was an arbitrary and capricious judicial seizure 
of his property and a denial of his rights without due 
process of law in violation of the 14th Amendment to the 
Federal Constitution.

y .

The decree enjoining Supreme Liberty Life Insurance 
Company, as mortgagee, and Harry H. Pace, sued as its 
president, was manifestly erroneous and so unreasonable 
and arbitrary as to deny these petitioners of their rights 
and property without due process of law, particularly in 
that the agreement sought to be enforced specifically 
exempted mortgagees from its operation.



25

VI.

The enforcement by the courts below of a restrictive 
agreement which prohibits Negroes from owning property 
on account of race or color, is State action within the 
meaning of the Fourteenth Amendment and therefore is 
in violation of said Amendment, in that it is a depriva­
tion of rights and property without due process of law 
and constitutes a denial of equal protection of the laws.

A.

If the legislative branch as an arm of the State cannot 
separate persons in neighborhoods on the basis of color 
or race, as was held in the case of Buchanan v. Warley, 
245 II. S. 60, it follows that the judicial branch as an 
arm of the State cannot do so.

B.

The enforcement of the restrictive agreement by the 
courts below abridges the rights, privileges and immuni­
ties of petitioners as citizens of the United States in vio­
lation of the Fourteenth Amendment.



26

ARGUMENT.

I .

The affirmance by the State Supreme Court of the decree 
of the trial court in its wrongful application of the doc­
trine of res judicata denied the petitioners the benefit of 
notice in the instant suit and a real opportunity to ap­
pear, to be heard, and to defend, and so deprived each 
of the petitioners of his property without due process of 
law and denied to each of them the equal protection of 
the laws.

Postal Cable Telegraph Co. v. Newport, 247 U. S.
464 at 476.

Brinkerhoff-Paris Trust and Savings Co. v. Hill.
281 U. S. 673, at 679-682.

Chase National Bank v. Norwalk, 291 U. S. 431.
Windsor v. McVeigh, 93 U. S. 274 at 277.

The application of the doctrine of res judicata against 
the petitioners in this cause is in direct opposition to the 
requirements of due process of law.

In Postal Cable Telegraph Co. v. Neivport, 247 U. S. 464, 
at 476 the court says as follows:

‘ ‘ The doctrine of res judicata rests at bottom upon 
the ground that the party to be affected, or some 
other with whom he is in privy, litigated, or has had 
an opportuity to litigate, the same matter in a former 
action in a court of competent jurisdiction. Southern 
Pacific Railroad Company v. II. S., 168 U. S. 1, 48 
Greenleaf Evidence, paragraph 522-523. The oppor­
tunity to be heard is an essential requirement in due 
process of law in judicial proceedings. Windsor v. 
McVeigh, 93 U. S. 274, 277; Louisville & Nashville



27

Railroad Company v. Schmidt, 177 U. S. 230, 236; 
Simon v. Craft, i82 U. S. 427, 436. And as a state 
may not, consistently with the Fourteenth Amend­
ment, enforce a judgment against a party named in 
the proceedings without a hearing or an opportunity 
to be heard {Pennoyer v. Neff, 95 U. S. 714, 733; Scott 
v. McNeal, 154 U. S. 34, 46; Coe v. Armour Fertilizer, 
237 IT. S. 413, 423), so it cannot without disregarding 
the requirement of due process, give a conclusive 
effect to a prior judgment against one who is neither 
a party nor a privy with a party therein.”

See also:
Brinkerhoff-Paris Trust mid Savings Co. v. Hill, 

281 IT. S. 673, at 679-682.
Chase National Bank v. Norwalk, 291 U. S. 431.
Windsor v. McVeigh, 93 U. S. 274 at 277.

A.

The case of Burke v. Kleiman, held by the State Supreme 
Court to be a class or representative suit and res judicata 
against all the petitioners as to execution, acknowledg­
ment and compliance with the conditions precedent to the 
restrictive agreement coming into effect, was not a class 
or representative suit. The case was one in which one 
property owner was suing another property owner to 
enforce the agreement to the injury and detriment of 
the latter and where there was a dispute, conflict of inter­
est and diversity of opinion as to the enforcement of the 
agreement.

In October, 1932, Olive Ida Burke (wife of James 
Joseph Burke, one of the petitioners herein) owning a 
parcel of property at 6039 Vernon Avenue, Chicago, Illi­
nois, filed a suit in equity (B. 217, 218) purportedly on 
her own behalf and on behalf of all other property own­
ers adversely affected by violation of the agreement there-



28

inafter mentioned. The case was merely one where one 
property owner, not a signer of the restrictive agreement, 
was suing another property owner, not a signer of the 
agreement, to enforce the purported restrictive ageement 
(E. 223, 224). There were no other property owners or 
signers made parties defendant in the case of Burke v. 
Kleiman nor named as parties plaintiff (E. 217, 218). 
Neither the petitioners nor any of their grantors were 
made parties to the proceeding of Burke v. Kleiman. 
There was no notice by publication or other-wise given 
to any of the other 500 or more property owners or sig­
natories to the said alleged restrictive agreement (E. 218, 
228-229). The only property involved was the property 
of Isaac Kleiman at 417 E. Sixtieth Street (E. 224-223). 
The suit filed by Olive Ida Burke against Isaac Kleiman 
and the other defendants had for its object the enforce­
ment of an alleged restrictive agreement. The prayer of 
the complaint merely sought to enforce the agreement 
against the defendant Kleiman’s property at 417 E. Six­
tieth Street, Chicago, Illinois; it did not seek to have the 
alleged agreement declared valid, binding and effective as 
to the other property, nor as to any other parties (B. 227- 
229).

The plaintiff, Olive Ida Burke, was suing Isaac Kleiman 
and was seeking relief against him and the other defend­
ants in a manner which would damage and injure Isaac 
Kleiman and the other defendants in respect to the prop­
erty at 417 E. Sixtieth Street in which the defendants 
had an interest. The plaintiff, Burke, could not in any 
sense represent the defendant, Kleiman, for the reason 
that the plaintiff, Burke, desired to enforce an agreement 
and the defendant, Kleiman, adversely desired not to 
enforce said alleged agreement; and there was a sharp 
conflict, difference, and diversity of interest and opinion



29

between the plaintiff on the one hand and the defendants 
on the other in respect to renting and selling property to 
Negroes. The case of Burke v. Kleinian could not possibly 
be a representative suit or class action for the reason that 
if it were such, there would be an anomalous situation 
where one member, Burke, of a class, would be suing an­
other member, Kleiman, of the same class and represent­
ing him in the same suit. In other words, in actuality, the 
plaintiff, Burke, was not representing the defendant, 
Kleiman, in respect to any common res or common subject 
matter or common right or title for the benefit of all 
involved, but on the contrary was engaged in a supposed 
dispute involving a difference and diversity of interest, 
and conflict of interest between the plaintiff, Burke, and 
the defendant, Kleiman, on the matter of leasing the one 
parcel of property involved, owned by the Kleimans, to 
Negroes or colored people (K. 218-229). Because of the 
sharp conflict of interest between the parties in the case 
of Burke v. Kleiman, that case could not possibly be a 
representative or class action, and since neither the peti­
tioners nor any of their grantors were parties to that 
action, nor served with summons or process, the decree of 
Burke v. Kleiman could not, in the absence of the peti­
tioners or their grantors bind, conclude, and estop the 
petitioners or their grantors; and both the trial court and 
the Supreme Court of Illinois erred in finding that decree 
binding, thereby depriving the petitioners of their rights 
and property without due process of law in violation of 
the Fourteenth Amendment to the United States Consti­
tution.

This Court in the case of Fayerweather v. Bitch, 195 
U. S. 276, had this to say in reference to the application 
of the principle of res judicata—page 276:

“ In Chicago Burlington Railroad v. Chicago, 166 
U. S. 226, we held that the judgment of a State court



30

might be here reviewed if it operated to deprive a 
party of his property without due process of law, and 
that the fact that the parties were purportedly brought 
into court and admitted to make defense was not 
absolutely conclusive upon the question of due process. 
We state: ‘ But a State may not by any of its agencies 
disregard the prohibitions of the Fourteenth Amend­
ment. Its judicial authorities may keep within the 
letter of the Statute prescribing forms of procedure 
in the courts and give the parties in interest the 
fullest opportunity to be heard and yet it might be 
that its final action would be inconsistent with that 
Amendment. In determining what is due process of 
law regard must be had to substance, not to form. 
This court, referring to the Fourteenth Amendment 
has said: “ Can a State make anything due process of 
law which by its own legislation chooses to declare 
such?”  To affirm this is to hold that a prohibition to 
the States is of no avail or has no application where 
the invasion of private rights is effected under the 
forms of said legislation.’ Davidson v. New Orleans, 
96 U. S. 97, 102. The same question could be pro­
pounded and the same answer should be made in ref­
erence to judicial proceedings.”

It is clear that the application of the principle of res 
pudicata necessarily involves decision as to whether or 
not the parties before the court in the case in which the 
principle is sought to be applied, have had notice and a 
fair opportunity to defend in former proceedings. It is 
clear, consequently, that this Honorable Court in protect­
ing the rights of citizens to due process of law under the 
Fourteenth Amendment will review the applications of the 
principle of res judicata by state courts.

It is of course necessary that the court be especially 
vigilant in its review of state court applications of the 
principle of res judicata where the former proceedings 
sought to be used are purportedly representative suits. 
This court in the case of The Wabash Railroad Company 
v. Adelbert College, 208 U. S. 38 at page 58, has sounded



31

a warning in respect to the doctrine of res judicata in 
representative suits. There the court said: “ The theory 
of the plea in bar is that the Ham suit was a representa­
tive or class suit, and that the judgment in it bound all of 
the class, even if they were not parties or privies to it. It 
was held otherwise by the Circuit Court of Appeals with 
respect to this very judgment, Compton v. Jesup, 68 Fed. 
Rep. 263, and in that opinion we concur. * * * ‘ The allega­
tion that the suit is brought in behalf of all who should 
join and share in the expenses cannot make the judgment 
binding on those who do not join. Some may have differed 
over jurisdiction and some perhaps could not join without 
disturbing the diversity of citizenship, upon which alone 
the jurisdiction was based, or some possibly had never 
heard of the pendency of the suit. It is clear if such suits 
in the Circuit Courts of the United States could have the 
effect claimed for them and the judgments in them are 
binding in our courts against all other persons of the same 
class, that injustice might result, and even collusive suits 
might be encouraged.’ ”

The holding of the Burke v. Kleinian suit to be a rep­
resentative suit and res judicata against the petition­
ers, deprived the petitioners of the benefit of notice and 
a real opportunity to defend. In Windsor v. McVeigh, 
93 U. S. 274 at 277, the Court says: “ A denial to the
party of the benefit of a notice would be in effect to deny 
that he is entitled to notice at all, and the sham and de­
ceptive proceeding had better be omitted altogether. It 
would be like saying to a party: Appear, and you shall be 
heard; and, when he has appeared, saying, Your ap­
pearance shall not be recognized, and you shall not be 
heard. In the present case the District Court not only in 
effect said this, but immediately added a decree of con­
demnation, reciting that the default of all persons had



32

been duly entered. It is difficult to speak of a decree thus 
rendered with moderation; it was in fact a mere arbitrary 
edict clothed in the form of a judicial sentence.”

A  property owner’s restrictive agreement between 500 
or more different property owners owning 500 or more 
different and dissimilar pacels of real estate cannot be 
the subject matter of a class or representative suit, there 
being no common res, no common subject matter, and no 
identity of interest among them. In order to bring a 
representative suit there must be some common right, res, 
title or common subject matter or identical interest in 
all of the members of the class. See Smith v. Swormstedt, 
16 How. 288 at 303; Wabash Railroad Co. v. Adelbert 
College, 208 U. S. 38 at pages 57-59; Christoper v. 
Brusselback, 302 U. S. 500 at 505; Hale v. Hale, 146 111. 
227 at 258; Weber pals v. Jenny, 300 111. 157; Saunders v. 
Poland Park Co., 198 Atl. 269.

The plaintiff who brings a class or representative suit 
must sue or defend for the benefit of all. A mere common 
interest in the question of law. or fact involved is not 
enough upon which to base a representative or class suit. 
The fundamental principle in respect to the bringing 
and maintaining of class actions has been stated most 
forcibly by Pomeroy “ Equity Jurisprudence,”  4th Edi­
tion (1918), Volume 1, Section 268, page 498):

“ In that particular family of suits, whether brought 
on behalf of a numerous body against a single party, 
or by a single party against a numerous body, which 
are strictly and technically ‘bills of peace, ’ in order that 
a court of equity may grant the relief and thus exer­
cise its jurisdiction on the ground of preventing a 
multiplicity of suits, there does and must exist among 
the individuals composing the numerous body, or 
between each of them and their single adversary, a 
common right, a community of interest in the subject 
matter of the controversy, or a common title from 
which all their separate claims and all the questions



33

at issue arise; it is not enough that, the claims of 
each individual being separate and distinct, there is 
a community of interest m erely in a question of law 
or of fact involved, or in the kind and form of remedy 
demanded and obtained by or against each indi­
vidual” .

See: Scott v. Donald, 165 U. S. 107 at page 115 to 117, 
in which the language of Mr. Justice Nelson in the case 
of Cutting v. Gilbert, 5 Blatchford 259, 261 is quoted as 
follows:

“  ‘ This is a bill of peace to quiet the rights of par­
ties, and put an end to further litigation. The bill is 
founded on the idea that all persons in business as 
brokers or as bankers doing business as brokers, 
charged Avith the tax in question, have such a unity or 
joinder in interest in contesting it, that all m ay join  
in the bill for that purpose; and that as the parties 
are so numerous as to make it inconvenient to join  
all of them, a determinate number m ay appear in 
the name of themselves and for all the rest. I  have 
not Deen able to concur in this view. The interest 
that a a u I I  alloAV parties to join in a bill of complaint, 
or that A v il l  enable the court to dispense with the 
presence o f all the parties, when numerous, except 
a determinate number, is not only an interest in the 
question but one in common in the subject m atter of 
the suit’ ” .

It is necessary again to observe that in the Burke v. 
Kleiman case, a purportedly representative suit applied 
as res judicata by the Illinois Supreme Court against 
the petitioners, one party, not a signer of the alleged 
agreement, was suing another party, not a signer of the 
alleged agreement, to enforce the same agreement. (R. 
218-219.)

A property owner’s restrictive covenant, which involves 
500 or more different OAvners owning dissimilar parcels 
of real estate, all of which are differently situated,



34

some with mortgages upon them, and some free and clear 
of encumbrances, some heavily burdened by taxes, and 
some not, some large, and some small, some homes and 
residences and some apartment buildings and commercial 
properties, some owned by private individuals and others 
by banks and insurance companies, some close to and 
adjacent to colored people and some far away, some owned 
by minors, guardian or trustees, some owned by hotels 
or inns under the statutory duty imposed by the Civil 
Eights Act of the State of Illinois to admit all persons 
without regard to race or color, some owned by hospitals 
under a like statutory duty to admit all persons, some 
wishing to enforce the agreement and others not, inher­
ently cannot be the subject mattei of a representative or 
class action, because there can be no common or identical 
interest between the property owners, and because in­
stead of one common subject matter, there are 500 or 
more different subject matters, and 500 or more measures 
of damages in respect to each alleged violation of the 
covenant.

In the instant case, the Supreme Court of Illinois af­
firmed a decree ivhich held a suit to be representative 
where the plaintiff Burke was suing another member of 
a class whom the plaintiff purported to represent. An 
allegation in a complaint, that a plaintiff brings the action 
on behalf of himself and all others similarly sea ted , does 
not in itself make an action a class suit. See Wabash 
Railway Co. v. Adelbert College, 208 U. S. 38 at 57-59; 
Hammer v. New York Railway Co., 244 U. S. 266 at 273.

The issue as to whether a property owner is bound is 
as to each, inherently personal in respect to individual 
execution and acknowledgment, in respect to which latter 
facts no property owner con be represented. Among the 
personal defenses available to each owner in respect to



35

the instant restrictive agreement, was the defense that 
the undertaking or promise or covenant of the owner was 
that he should be bound only i f  the owners o f  95% o f the 
frontage joined in the purported agreement.

A representative or class suit if permitted and sus­
tained in a restrictive covenant suit involving 500 or more 
parcels of property and 500 or more different owners 
would destroy essentially all the personal defenses to 
which each owner is entitled, namely: forgery of signa­
tures, fraud and trickery in obtaining signatures, signing 
upon the condition that a certain number of other owners 
would sign, alteration of the instrument, laches, waiver, 
abandonment, estoppel, and change in the character of 
the neighborhood which would render inequitable the 
enforcement of the purported agreement. Each individ­
ual party signatory is entitled to prove as to these, not 
only in respect to himself but in respect to all other pur­
ported parties signatory, by whom and with whom he is 
sought to be bound. He is entitled to require proof of 
or to disprove the existence of the agreement.

The wrongful application by the Illinois Supreme Court 
and by the lower court of the doctrine of res judicata 
against the petitioners herein deprived the petitioners of 
their rights and property without due process of law in 
violation of Section 1 of the 14th Amendment to the 
Federal Constitution because the wrongful sustaining of 
the respondents’ plea of res judicata  on the theory of a 
supposed representative or class suit prevented these 
petitioners from utilizing the above mentioned personal 
defenses to which each owner was lawfully entitled under 
the laws of the State of Illinois, and as a consequence the 
petitioners were wrongfully deprived of notice and a 
real opportunity to appear, to be heard, and to defend. 
The petitioners, as well, as a consequence were denied the



36

equal protection of the laws of the State of Illinois. See 
Postal Cable Telegraph Co. v. Newport, 247 U. S. 
464 at 476; Wabash Railroad Co. v. Adelbert College, 208 
U. S. 38 at 58; Windsor v. McVeigh, 93 U. S. 274 at 277; 
Earle v. McVeigh, 91 U. S. 503 at 507; Brinkerhoff-Faris 
Trust & Savings Co. v. Hill, 281 U. S. 673 at 679-682.

The effect upon the petitioners’ rights to utilize the 
personal defenses available to them, and for that matter, 
upon the rights of any alleged parties signatory to a 
restrictive agreement, of the application of the principle 
of res judicata by means of the device of holding 
former proceedings to have been representative or class 
in character, is illustrated by the record in the instant 
case. The respondents’ witness, Eva Sommerman, the 
predecessor in title of the petitioners’ Hansberry, who 
owned the property involved in this suit at the time of 
the circulation of the alleged restrictive agreement 
among the property owners, testified that she signed the 
agreement, Plaintiff’s Exhibit 5 (E. 315, 318), but stated 
upon cross-examination: “ I don’t know what an ac­
knowledgment is. I didn’t go through any formality of 
signing it or acknowledging it. I didn’t take any oath 
in respect to it.”  (B.. 92.)

The petitioner, Israel Katz, testified as follows: ‘ ‘ My
signature appears on page 19 of Plaintiffs’ Exhibit 5, 
and never to my knowledge did I sign that document. I 
signed the sheet upon which my name appeared which 
was presented to me with 2 or 3 sheets of paper. A  man 
told me he was getting up a list of signatures for the 
improvement of the neighborhood. He did not tell me 
he was a Notary Public, nor did he say any tiling about 
restrictions against the sale of my property. I am fa­
miliar with the manner of taking acknowledgments to 
deeds and nothing like that appeared. I know this sheet



37

wasn’t a deed. When I signed it no one explained the 
contents of the instrument to me, nor did the man who 
presented the instrument say anything about any agree­
ment.”  (E. 172.)

The record in the State Supreme Court shows innumer­
able instances (which were pointed out both to the lower 
court and the Illinois Supreme Court) where the individ­
ual purported parties signatory could have made sub­
stantial defenses in suits brought against them individ­
ually to enforce the agreement, such as, their purported 
obligation under the instrument, including such defenses 
as erasures, forgery, fraud and trickery in obtaining 
signatures; lack of authority of purported agents, officers 
of corporations, trustees with testamentary or other 
powers, guardians, minors, and the like; lack of the re­
quired statutory personal knowledge of the Notary Pub­
lic as to the identity of the signer and of the signer as 
the owner of the identical property involved. (R. 92, 
93, 96, 145, 159-171, 172, 185-188, 203-4.)

It is well worth observing that the defense of improper 
acknowledgment in the instant case was available to each 
of the parties signatory by reason of the fact that the 
purported signatures to the agreement are wholly uncon­
nected and separated from the purported acknowledg­
ments which do not appear and are not attached to the 
same document or paper upon which the signatures ap­
pear. (R. 315-325.) (Note— there were four exhibits,
Plaintiff’s Exhibits 5, 5a, 5b and 5c, recorded respectively 
as 9914711, 9914713, 9914714, 9914712; R. 144, 142-145.)

The petitioners in this cause, and ipso facto all other 
purported parties signatory to the purported restrictive 
agreement, were by application of the doctrine of res 
judicata through the Burke v. Kleiman proceeding pre­
cluded from the defenses hereinabove set out. The trial



38

court overruled the objections of the petitioners to the 
admission of Plaintiffs’ Exhibit 5 and, as well, concluded 
the petitioners against proof, in the decree of the court 
overruling said objections as aforesaid and applying the 
doctrine of res judicata, and thereby denying the peti­
tioners due process of law and the equal protection of 
the laws.

The personal defenses hereinabove discussed are as a 
matter of state law available in the trial of civil cases 
involving contracts in the courts of the State of Illinois. 
They are a part of the common law adopted by most of 
the states of the Union. Reference is made to the Notes 
and Comments upon the decision of the State Supreme 
Court now being reviewed in this cause. See University 
of Chicago Law Review, Vol, 7, No. 3 (April, 1940) 
Pages 563-567; Illinois Law Review, Vol. 25 (June, 1940) 
No. 2, Pages 213-218.

The peculiarly personal defenses available to each 
purported signer cannot be determined in a representa­
tive or class proceeding and no signer to any such re­
strictive agreement can be represented by any other 
signer in respect to such defenses personal to each signer. 
See Christopher v. Brusselfoack, 302 U. S. 500 at 504-5. 
The provision in the purported agreement to the effect 
that “ This agreement and the restrictions herein con­
tained shall be of no force or effect unless this agreement 
or a substantially similar agreement shall be signed by the 
owners above enumerated of 95% of the frontage above 
described’ ’ and other conditions precedent contained 
therein, emphasize the retention of the right by each in­
dividual signer to contest the validity of the agreement 
in every respect. The agreement contained no power to 
confess a judgment or decree.

It is a well settled principle of law as announced by



39

this court in numerous cases that mere numerousness of 
parties is not sufficient for the bringing and maintaining 
of a representative or class suit. See Matthews v. Rod­
gers, 284 U. S. 521 at 529-30; Hale v. Allinson, 188 U. S. 
56 at 7/, et seq.; St. Louis Iron Mountain and Southern 
Ry. Co. v. McKnight, 244 U. S. 368 at 375; Kelley v. Gill, 
245 U. S. 116 to 120.

We respectfully call to the attention of the court the 
statement of Mr. Justice Shaw in his dissenting opinion 
to the decision of the Illinois State Supreme Court now 
on review in this court as follows:

“ The opinion in this case states that the defend­
ants were so numerous that it would have imposed 
an unreasonable hardship and burden to make them 
all parties to the suit. This is a definite overruling 
of Whitney v. Mayo, 15 111. 251. It is true that there 
were 500 defendants, but even the humblest of these 
500 had a right to his day in court, to be made a 
party to the suit and to be given an opportunity to 
defend it. Their names were on the public records 
of Cook County and not the slightest excuse appears 
for not making them parties to the suit. I f one 
sought to bind all the property in the City of Chicago 
by some restrictive covenant he would ' assume the 
burden of making every property owner in that city 
a party^ to the suit, either by name or as unknown 
owner, if he was, in fact, unknown. He could not 
gain an advantage for himself through a fraudulent 
scheme simply by saying they were too numerous to 
mention.”  (R, 333-4.)



40

B.

The purported agreement involved in Burke v. Kleiman and 
in the instant suit provided that it was to be null and 
void and of no force and effect unless signed, sealed and 
acknowledged by the owners of 95 per cent of the front­
age. The proof in the instant case, as found by the trial 
chancellor, showed that this condition precedent to valid­
ity was not complied with; consequently, no agreement 
ever came into force or effect and there was no class to 
be represented by anyone. The court had no jurisdiction 
to bind the petitioners and their privies who were not 
parties and not served with summons or process in said 
cause. The decree of Burke v. Kleiman was therefore 
void and could not be pleaded as res judicata against 
these petitioners.

The trial chancellor Bristow, found that the restric­
tive agreement involved in this case and in Burke v. 
v. Kleiman, was an invalid agreement because the re­
quired frontage consent of the owners of 95% of the 
frontage had never been obtained, hut only 55%. (R. 191- 
199.) Although the Chancellor found that the condition 
precedent of frontage consent of 95% had never been 
complied with, he nevertheless enforced the non-existent 
restrictive agreement (invalid and non-existent according 
to its own terms) hv holding and finding that the case 
of Burke v. Kleiman was a representative or class action, 
and therefore, all the defenses, such as lack of 
due and proper execution, failure to comply with 
the condition precedent in the instrument, fraud and 
trickery in the obtaining of signatures, alteration of 
the instrument and the erasure of names, laches, aban­
donment, estoppel and change in the character of the 
neighborhood, all raised by the petitioners herein, were



41

precluded and could not be properly raised by the peti­
tioners, because the plea of res judicata was properly in­
voked by the respondents.

In the instant case (and in the case of Burke v. Klei- 
man) the court made an agreement for the parties and 
specifically enforced a non-existent agreement by specific 
performance and granted a harsh mandatory injunction 
against the petitioners Hansberry, although neither the 
petitioners nor their privies, had been parties to the pro­
ceedings of Burke v. Kleiman, nor served with summons, 
process or notice in said cause.

The record in this case affirmatively shows that the 
court never acquired jurisdiction in the case of Burke v. 
Kleiman over any subject matter of that lawsuit, because 
there was in fact no restrictive agreement whatsoever 
according to the terms of the instrument purported to be 
enforced by the decree of Burke v. Kleiman. The court 
had no authority, right or jurisdiction whatsoever to en­
force an agreement which did not exist, and the judgment 
and decree in the case of Burke v. Kleiman is therefore 
void for want of jurisdiction, and such a void judgment 
or decree could not be pleaded as res judicata against the 
petitioners herein. See Scott v. McNeal, 154 U. S. 34 at 
48 to 51.

In the case of Scott v. McNeal, this court held 
that a probate proceeding upon a living person was void 
for want o f jurisdiction, and that to give effect to such 
a proceeding even in the name of a State was a denial 
of due process of law. Similarly, the courts of the State 
of Illinois had no jurisdiction whatsoever to enforce a 
non-existent restrictive agreement, there being no sub­
ject matter upon which the jurisdiction of any court 
might attach. See Galpin v. Page, 18 Wall, 350 at 365 
and 366; Old Wayne Life Association v. McDonough, 204 
U. S. 8 at pages 14-18, 22 and 23.



42

The record of Burke v. Kleimcm itself affirmatively 
establishes the invalidity of the judgment or decree in 
that case. The complaint in the case of Burke v. Klei- 
man states that “ said agreement was signed by the 
owners of 95 percentum of the frontage described there­
in” . There was no evidence taken in said cause, but the 
attorney for the plaintiff, Olive Ida Burke, and the alleged 
attorney (but wholly unauthorized as will be shown by 
the record (R. 171), for the defendants), stipulated that 
the cause be heard upon agreed facts to be stipulated 
without the necessity of taking oral evidence (R. 185). In 
accordance with this stipulation, another stipulation of 
agreed facts was executed with the same lack of author­
ity by the same attorneys, and said stipulated or agreed 
facts merely recites the following: “ That, on, to-wit,
the 30th day of September, 1927, about five hundred or 
over white persons duly executed and entered into a 
restrictive agreement described in the bill of complaint 
herein, said white persons constituting and comprising 
more than the 95% of the then owners of said frontage 
described in said agreement” . (R. 236-243.) The decree 
in the case of Burke v. Kleiman merely recites the fore­
going statement to the effect that the agreement had been 
signed by 95% of the owners. (R. 236.) The decree in 
Burke v. Kleiman (R. 263 to 246), likewise finds that 
the stipulated facts constituted the evidence in the cause 
of Burke v. Kleiman. (R. 243.) The stipulated or agreed 
facts (R. 236) fail to show that 95% of the owners exe­
cuted the agreement. The decree of Burke v. Kleiman 
merely shows that 95% of the oivners executed the 
agreement. (R. 236.) Consequently, the proceedings 
and decree in the case of Burke v. Kleiman show and 
prove affirmatively upon their face the entire and com­
plete lack and want of jurisdiction in the court to enter 
any decree enforcing any agreement. There is a complete



43

lack of facts and findings in the stipulated agreed facts 
or in the decree to establish the central and prime allega­
tion in the complaint (R. 223) to the effect that the own­
ers of 95% executed the agreement.

It is quite easy to see that 95% of the owners of the 
area might not own 95% of the frontage, or to state it 
another way, that 95% of the owners might own only 50% 
or 60% of the frontage. In the light of the fraud and 
collusion in the case of Burke v. Kleinian, as shown by 
the lecoid in this case (as hereafter shown), the court 
can easily see that the recital in the stipulated or agreed 
facts that 95% of the owners executed the agreement, was 
not a mere inadvertence.

It has always been held by this court that a judgment 
void for want of jurisdiction may be collaterally attacked 
at any time and in any court. See Galpin v. Page, 18 
Wall. 350 at 366 and 367. In order to render a valid 
judgment, a couit must have jurisdiction of the subject 
matter as well as the parties. In the case of Burke v. 
Kleimgn there was entire lack of jurisdiction over any 
subject matter, there being in fact no agreement whatso- 
e\ei to enforce. This court has held that presumptions 
wall not be indulged in to supply a proper or valid sub­
ject matter or jurisdictional facts where the evidence and 
record in the case show that the contrary appears. This 
rule of law has been stated by Justice Field in the case 
of Galpin v. Page, 18 Wall. 350 at 366, where the follow­
ing language was used:

“ But the presumptions, which the law implies in 
support of the judgments of superior courts of gen­
eral jurisdiction, only arise with respect to jurisdic­
tional facts concerning which the record is silent. 
Presumptions are only indulged to supply the ab­
sence of evidence or averments respecting the facts 
piesumed. They have no place for consideration



44

when the evidence is disclosed or the averment is 
made. W hen, therefore, the record states the evi­
dence or makes an averment with reference to a jur­
isdictional fact, it will be understood to speak the 
truth on that point, and it will not be presumed that 
there was other or different evidence respecting the 
fact, or that the fact was otherwise than as averred.”

The proceedings, that is, the stipulation and agreed 
facts and the decree containing said stipulated and agreed 
facts in the case of Burke v. Kleiman affirmatively shows 
the entire absence of a restrictive agreement, which de­
pended for its validity upon the compliance with the con­
dition precedent contained therein, nam ely: Execution
of the instrument by the OAvners of 95%  of the frontage. 
No presumption can be indulged in to supply the absence 
of the finding of compliance Avith the condition precedent 
in the instrument, which could not become an agreement 
until the OAvners o f 9 5 %  had signed, sealed, executed and 
delivered the same. The void judgment and decree in the 
case of Burke v. Kleiman could not be pleaded against 
the petitioners as res judicata. See Thompson v. Whit­
man, 18 W all. 457 at 468 to 4 70 ; Old Wayne Life Associa­
tion v. McDonough, 204 U . S. 8 at Pages 14 to 17, 22 to 23.



45

n .
The petitioners were deprived of their rights and prop­

erty without due process of law by the judgment of the 
Supreme Court of the State of Illinois in sustaining the 
decree of the lower court which applied against the peti­
tioners as res judicata the case of Burke v. Kleiman, the 
proceedings and decree in which were fraudulently and 
collusively brought and maintained, as found by the trial 
chancellor.

There was fraud going to the jurisdiction of the court in 
the very basic and essential allegation that there was a 
valid agreement that had actually been signed by the 
necessary owners of 95 per cent of the frontage, and fraud 
in the jurisdictional allegation that there was a class to 
be represented when, in fact, no such class ever existed. 
Moreover, the said proceedings were fraudulently main­
tained by means of a false stipulation of facts that the 
required frontage consent had been obtained.

The false stipulation of facts was preceded by stipulation 
of counsel in said cause that a stipulation, of fact would 
be entered into in lieu of evidence and the case tried 
upon the pleadings without the necessity of any proof 
of any sort.

Such a fraudulent proceedings and decree canot be res 
judicata against anyone.

The Chancellor in the lower court who heard and con­
sidered all of the evidence in respect to the fraudulent 
and collusive character of the Burke v. Kleiman suit, 
found that the suit was a fraudulent and collusive proceed­
ing conducted to establish the invulnerability of the dis­
trict, that to make the district unassailable the suit was



46

brought to test the validity of the agreement and to have 
judicial determination of that fact. (R. 192-193.)

We can follow the fraud in connection with the attempt 
to establish this invalid agreement as valid in law, in 
sequence by the record before this court.

One Helman, was the Executive Secretary of the Wood- 
lawn Property Owners’ Association, the Association or­
ganized to promote and establish the agreement. (R. 142, 
203.) He took most of the acknowledgments to the pur­
ported agreement. He had knowledge that the agree­
ment had not come into effect by its terms. He super­
vised the institution and filing of the Burke v. Kleimcm 
proceedings. All of these facts are set out and shown in 
an uncontradicted affidavit filed in this cause in support 
of a motion and petition of the petitioners to vacate and 
set aside the decree in this cause, all of which were a part 
of the record before the Illinois Supreme Court at the 
time that it reviewed and affirmed the proceedings and 
decree of the lower court.

Helman, who had knowledge that the agreement was 
invalid, took the acknowledgment to the complaint which 
Olive Ida Burke made upon information and belief. (R. 
203, 204, 229-30.)

Perfunctory answers were filed on behalf of all the 
defendants, and in none of the answers was issue taken 
upon the due execution and acknowledgment of the 
agreement sued upon or upon compliance with the con­
dition precedent contained therein. (R. 230-235.)

Isaac Kleiman, and James Lowell Hall, testified that 
they did not employ any lawyers to represent them (R  
171-172), and had not authorized any lawyer to sign a 
stipulation in their behalf. Notwithstanding, a stipula­
tion was entered into by Charles J. Sopkin, a lawyer and



47

one of the defendants, in behalf of all the defendants, with 
the attorney for the plaintiff, that the case should he 
tried on a stipnlation of facts without the necessity of 
producing oral evidence. A stipulation was subsequently 
entered into stipulating facts to be considered as evidence, 
including the false stipulation as to the due execution 
and acknowledgment of the agreement and compliance 
with conditions precedent contained therein. The decree 
erroneously, consistent with the erroneous stipulation in 
the stipulated facts, found that 95% of the owners of 
said frontage had executed and entered into the agree­
ment and not the owners of 95% of the frontage, as re­
quired by the agreement. The prayer of the plaintiff’s 
complaint did not ask that the agreement he found valid, 
and the ordering part of Burke v. Kleiman, decree merely 
enforced it against the named defendants. (R. 185, 227, 
236-46.)

The fraudulent character of Burke v. Kleiman pro­
ceedings, under attack hv the petitioners when pleaded 
by the respondents as res judicata, was patent from the 
pleadings in the Burke v. Kleiman case, and the evidence 
adduced in Lee v. Hansberry hearing.

There was no real controversy between the parties 
nominally opposed to each other, and the litigation was 
in fact carried on under the direction and control of the 
plaintiff and the Woodlawn Property Owners’ Associa­
tion and its employees engaged in conducting the project 
of establishing the restricted area and the invalid re­
strictive agreement.

It is well settled that this court will review applications 
of the doctrine of res judicata and this court is of course, 
especially diligent in its examination of the application 
of res judicata in respect to proceedings sought to be used



48

as res judicata and which bear hall-marks of fraud. See 
Hatfield v. King, 184 U. S. 162; Geter v. Hewitt, 22 How. 
364.

This court has made a capital statement in respect
to fraudulent and collusive suits. In the case of Lord v.
Veasie, 8 How. 251, the court speaking through Mr. Chief 
Justice Taney in respect to a fraudulent suit, used the 
following language:

‘ ‘ Page 253 : The court is satisfied, upon examining 
the records of this case, and the affidavits filed and 
the motion to dismiss, that the contract set out in 
the pleadings was made for the purpose of institut­
ing this suit, and that there is no real dispute be­
tween the plaintiff and the defendant. On the con­
trary, it is evident that their interest in the question 
brought here for decision, is one and the same, and 
not adverse; and that in these proceedings, the plain­
tiff and defendant are attempting to procure the 
opinion of this court upon a question of law, in the 
decision of which they have a common interest op­
posed to that of other persons, who are not parties 
to this suit, who had no knowledge of it while it was 
pending in the Circuit Court and no opportunity of 
being heard there in defense of their rights. And 
their conduct is the more objectionable because they 
have brought up the question upon a statement of 
facts agreed on between themselves, without the 
knowledge of the parties with whom they were in 
truth in dispute and upon a judgment pro forma.
*  *  # >5

The circumstances of fraud exhibited in Burke v. Klei- 
man proceeding illustrate the vice of holding suits and 
proceedings not truly representative in character as res 
judicata against persons without notice and a real oppor­
tunity to defend in respect to vital issues affecting their 
rights and property.

The Illinois State Supreme Court in its review of the 
proceedings in the instant cause, without modifying the 
decree of the lower court, stated that the charges of



49

fraud made by the petitioners were unsupported by the 
evidence. The opinion of the court referred to the fact 
that the charges were made in the answer of the peti­
tioner, Burke, and that he appeared to have had part 
in the fraud, if any, in the Burke v. Kleinian proceedings. 
The affidavit of Helman, which was before the court at 
the time of its review of the lower court’s proceedings, 
definite]}- showed that the Burke v. Kleinian proceedings 
were conducted under his and the Woodlawn Property 
Owners’ Association’s supervision. The record further 
showed that the plaintiff, Olive Ida Burke, was herself not 
a party signatory to the agreement, and that neither she 
nor Burke were necessarily informed of the fraud in 
the initiation of the agreement, its illegal recordation 
and the facts indicating fraud now exposed in the pro­
ceedings in the instant suit. (R. 218-247.) It should be 
noted that the answer of James Joseph Burke was under 
oath as true in substance and in fact and that the denial 
of the charges contained in the Burke answer was made 
in the reply signed by the attorneys for plaintiffs. (R. 
43-49.)

Reference is made to the dissenting opinion of Mr. 
Justice Shaw in the instant case. Burke v. Kleiman pro­
ceedings were fraudulent and fraud attached to the juris­
diction of the court and tainted the entire proceedings, and 
so rendered the same void when attacked by the petitioners 
on the record as shown herein.



50

m .

The decree of the State Courts which deprived the Hans- 
berrys of their property without compensation was so 
arbitrary to law as to amount to a mere spoliation in 
violation of their rights to due process of law under the 
14th Amendment to the Federal Constitution.

The decree entered by the Chancellor in the trial court 
deprived the petitioners of their rights in the arbitrary 
seizure of their property by a Master in Chancery of the 
Superior Court of Cook County, Illinois. The result of 
this action was the forceful transfer of the property of 
one citizen to another. (R, 88.) That this harsh and 
oppressive action is violative of the Fourteenth Amend­
ment is readily apparent. In support of this proposition 
note the case of Chicago, Burlington & Quincy Railroad 
v. Chicago, 166 U. S. 226, Pages 236, 237, to this effect:

“ The legislature may prescribe a form of pro­
cedure to be observed in the taking of private prop­
erty for public use, but it is not due process of law 
if provision be not made for compensation. Notice to 
the owner to appear in some judicial tribunal and 
show cause why his property shall not be taken for 
public use without compensation would be a mockery 
of justice. Due process of law as applied to judicial 
proceedings instituted for the taking of private prop­
erty for public use means, therefore, such process as 
recognizes the right of the owner to be compensated 
if his property be wrested from him and transferred 
to_ the public. The mere form of the proceeding in­
stituted against the owner, even if he be permitted 
to defend, cannot convert the process used into due 
process of law, if the necessary result be to deprive 
him o f his property without compensation.”

See also Missouri Pacific Railway v. Nebraska, 164 U. S. 
403.

\



51

The mere formal due process cannot convert the action 
of the State Courts into constitutional procedure. Legis­
latures have come to learn that under ordinary circum­
stances property cannot be taken without compensation. 
Chicago, Burlington & Quincy Railroad v. Chicago, 166 
U. S. 226 at 241. I f  Legislatures are prohibited from ar­
bitrarily seizing property, then the courts suffer the 
same regulations and prohibitions. To contend in the 
instant case that the Ilansberrys had due process when 
their property was arbitrarily transferred to Jay B. 
Crook, would be a travesty. Crook was Hansberry’s 
predecessor in title and an alleged co-conspirator. (R. 
8.) The Court thus not only arbitrarily divested the 
Hansberrys of their title but reinvested title in Crook 
who had received good and valuable consideration. The 
arbitrary nature of the proceeding is further noted on an 
examination of the restrictive agreement which wTas the 
basis of the proceedings below. No where in the agree­
ment is a forfeiture provided. (R. 316-317.)

If due process under the Fourteenth Amendment has 
any meaning, it certainly includes the proposition that 
property shall not be taken from one person by State 
action whether legislative, judicial or executive, and given 
to another without compensation, particularly as here, 
where the person to whom the property was given stood 
in the same position as the individuals who were divested 
of their title.

Chicago, Burlington & Quincy Railroad v. Chi­
cago, 166 U. S. 226 at 233-234.



52

IV.

The decree of the State Courts enjoining Israel Katz, hav­
ing been entered without any evidence whatsoever, is 
so plainly arbitrary and contrary to law, as to amount 
to a mere spoliation of the petitioner Katz and as a con­
sequence was an arbitrary and capricious judicial seizure 
of his property and a denial of his rights without due 
process of law in violation of the 14th Amendment to 
the Federal Constitution.

The complaint of the respondents charged that the 
petitioner Katz, listed his property for sale with James 
J. Burke, and that he made threats to sell his property 
to colored people. Katz testified that he never at any 
time had any conversation with James J. Burke about 
the sale of his property at 6018 Vernon Avenue (R. 172- 
173) and this fact ivas never rebutted in any manner 
whatsoever by the respondents. The complaint also 
charged that Katz made threats to sell his property. (R. 
12-13.) No threats by Katz whatsoever were ever proved. 
The respondents merely offered the following things as 
evidence of threats by Katz: That Katz was subpoenaed 
as a witness in a proceeding before the State Department 
of Registration and Education in February or July, 1937, 
according to respondents’ witness Raymond (R. 122); that 
while testifying as a witness in this proceeding against 
William I. Sexton, a real estate broker, Attorney Harry 
E. Raymond, one of the attorneys for the respondents as 
shown by the record in this ease, and one of the attorneys 
for the plaintiff in the case of Burke v. Kleiman asked 
Katz the following question: “ Would you sell your prop­
erty at 6018 Vernon Avenue to colored people, notwith­
standing the agreement that is recorded in the particular 
district, Washington Park District, in which your prop-



53

erty is located, and in which you the owner, then owner 
of this property was a signer for yourself?”  And Katz 
said: “ Yes, I would. I would sell it to anybody that I
could get to purchase it. I would sell it now if I could.”  
This was not a threat, but was an answer elicited by the 
respondents themselves or their agents from a witness 
who was subpoenaed by them and who was answering a 
hypothetical question put by their attorney. In other 
words, the only evidence in the record as to any threat is 
a privileged statement made by the petitioner Katz, and 
induced by the respondents themselves while upon the 
witness stand in another proceeding in February, 1937, 
or July, 1937, as stated by the witness Raymond. (R. 
122.) The witness Raymond was in utter confusion as to 
the date of this testimony by the petitioner Katz, and tes­
tified that it Avas made either February, 1937, A\rhich 
was at least four months prior to the filing of the in­
junction suit or in July, 1937, which would have been after 
the filing- of the complaint in this cause, which A v a s  filed 
on June 7, 1937.

In other words, the supposed statement of Katz was 
not of such imminent or immediate pending nature that 
an injunction Avas necessary to protect the rights, if any, 
of the respondents. A  substantial Federal right has 
been denied the petitioner Katz, and a decree of injunction 
has been issued against him Avithout any real basis of 
eAudence. In order to determine the violation of the 
Federal right asserted by the petitioner Katz, we sub­
mit that the court should examine the record for that 
purpose. See Norris v. Alabama, 294 U. S. 587 at 590; 
Creswill v. Knights of Pythias, 225 IT. S. 246 at 261; 
Traux v. Corrigan, 257 U. S. 312 at 324-325.

The enforcement o f the decree against the petitioner 
Katz, likeAAuse depri\Ted him of his fundamental rights



54

as a citizen of the United States to deal with property  
rightfully belonging to him. The harsh and injudicious 
manner in which his property rights were affected di­
vested him in effect of his property in view o f the change 
in the character of the surrounding neighborhood which 
made it impossible for the petitioner to use his property  
in a manner consonant with complete OAvnership. (E . 
180-184.)

V.

The decree enjoining Supreme Liberty Life Insurance 
Company, as mortgagee and Harry H. Pace, sued as its 
president, was manifestly erroneous and so unreasonable 
and arbitrary as to deny these petitioners of their rights 
and property without due process of law, particularly in 
that the agreement sought to be enforced specifically 
exempted mortgagees from its operation.

Not having purchased any property in the area and 
having acted only in a manner entirely laAvful and per­
mitted even under the alleged agreement and being au­
thorized under the lav ŝ of the State of Illinois to make 
mortgages on real estate, the arbitrary act of the court 
in applying the doctrine of res adjudicatei was not merely 
erroneous but deprived the petitioner Supreme Liberty 
Life Insurance Co. of its substantial, substantive rights 
and seriously interfered AAnth and hampered its competi­
tive opportunities to make earnings from investments. 
Certainly the petitioners Pace and the Supreme Liberty 
Life Insurance Co. had the right to be heard on the ques­
tion Avhether this alleged covenant had ever been executed 
by the owners of 95% of the frontage in the area in­
volved, but the court denied them such right A\’hen it sus­
tained the plea of res adjudicata interposed by respond­
ents. Petitioners were charged Avith conspiring to Adolate 
a covenant, which by the evidence adduced at the trial was



55

shown conclusively and indubitably never to have existed. 
This was a direct denial of due process and we submit 
that such action cannot be contenanced by the highest tri­
bunal of our nation.

Chicago, Burlington and Quincy v. Chicago, 166 
U. S. 226.

VI.

The enforcement of the restrictive agTeement by the courts 
below abridged the rights, privileges and immunities of 
petitioners as citizens of the United States in violation 
of the Fourteenth Amendment.

It is well settled that the prohibitions of the Four­
teenth Amendment were designed to protect the newly 
emancipated Negro so that he Avould stand on an equal 
footing with all other American citizens before the law. 
Though the language is prohibitory, every prohibition 
implies the existence of rights and immunities, prominent 
among which is the immunity from inequality of legal pro­
tection, either for life, liberty, or property. Any denial 
or abridgement of these fundamental immunities is cer­
tainly in conflict with the Constitution. (Strauder v. 
West Virginia, 100 U. S. 303, 308.)

That the prohibitions of the Fourteenth Amendment 
refer to all branches of the government is self-evident. 
Chicago, Burlington and Quincy v. Chicago, 166 U. S. 
226, Mr. Justice Harlan speaking for the court in that 
case said on pp. 233, 234:

“ But it must be observed that the prohibitions of 
the amendment refer to all the instrumentalities of 
the State, to its legislative, executive and judicial 
amthorities, and, therefore, whoever by virtue of pub­
lic position under a State government deprives an­
other of any right protected by that amendment 
against deprivation by the State, violates the consti­
tutional inhibition; and as he acts in the name and



56

for the State, and is clothed with the States’ power, 
his act is that of the State.”

In the case at bar, the enforcement of the decree by 
specific performance and the subsequent seizure of the 
property of the petitioners Hansberry was state action in 
that the Chancellor and the Master in Chancery were 
properly constituted officers and agents of the State. 
See Ex parte Virginia, 100 U. S. 339; Br inherit off-Paris 
Co. v. Hill, 281 U. S. 673, 682; Carter v. Texas, 177 U. S. 
4422. The use of the agencies of the state was contem­
plated by the framers of the restrictive agreement. It is 
not only provided that the courts of the state were to be 
used for purposes of enforcement but also that certain 
offices of the state were likewise to be utilized to breathe 
life into the instrument. The agreement provided that 
it should be of no force or effect unless it was recorded 
in the office of the Recorder of Deeds of Cook County, 
Illinois. (R. 316.)

That the enforcement of the restrictive agreement was 
state action cannot be doubted when the Chancellor in 
effect made himself an interested party to the extent of 
rewriting the instrument to include a forfeiture provi­
sions that the framers did not intend. (R. 316.) This 
affirmative action, coupled with that of the Master in 
Chancery who executed the conveyance from Hansberry 
to Crook, effectively denied the petitioners their rights 
under the Fourteenth Amendment. This action creates 
a situation somewhat analogous to that in Scott v. Mc- 
Neal, 154 IT. S. 34, where the court held that a judgment 
of the highest court of a State, by which a purchaser at 
an administration sale, under an order of a probate 
court, acquired land belonging to a living person who 
had not been notified of the proceedings, deprived him 
of his property without due process of law contrary to



57

the Fourteenth Amendment. In the instant ease, by a 
judgment of the lower court, affirmed by the highest 
court of the state, we find title to realty being taken by 
the state.

Unless by some superogation recently arrived at, if 
the state through the legislative branch cannot separate 
persons in neighborhoods on the basis of color or race, 
as was held in Buchanan v. Warley, 245 U. S. 60, it fol­
lows that the judicial branch as an arm of the state can­
not do so. Such a decree by the judiciary would have all 
the force of a statute and would have behind it the sov­
ereign power of the state. It would not be the plaintiffs 
in the case below speaking but the sovereign itself 
through the courts, telling the petitioners of a new law­
making power that could invalidate and hold as a nul­
lity a prior decision of this court. Buchanan v. Warley, 
supra. It would indeed be narrow and strained to deny 
the exercise of power to segregate races to the legislative 
branch on the one hand and permit the judicial on the 
other to give legal sanction to segregation. Such a course 
would be unsettling in the extreme at a time when the 
body politic can stand few more such extreme shocks.

The petitioners as citizens of the United States have 
a national citizenship that has been seriously impaired by 
the action of the state courts. Citizenship is dual in 
nature. An individual may be both a citizen of a state 
and also a citizen of the United States, but certainly the 
sta tes can in no -wise impair the paramount national 
citizenship. Note the language of Colgate v. Harvey, 296 
U. S. 404 at 427, where the court through Mr. Justice 
Sutherland stated:

“ Thus, the dual character of our citizenship is 
made plainly apparent. That is to say, a citizen of 
the. United States is ipso facto and at the same time 
a citizen of the state in which he resides. And while



5 8

the Fourteenth Amendment does not create a na­
tional citizenship, it has the effect of making that 
citizenship ‘ paramount and dominant’ instead of ‘ de­
rivative and dependent’ upon state citizenship.”

The action of the Chancellor in the instant case, as well 
as the activity of his Master in Chancery, in the enforce­
ment of the decree ordering specific performance of the 
covenant and likewise depriving the petitioners Hans- 
berry of their property, in effect reversed the true order 
of priority of citizenship. We have the situation of the 
state, through its duly constituted agents, issuing a man­
date to citizens of the United States in a manner that 
sets back the orderly development of the constitutional 
law of both this country and of England. A right to live 
and a place in which to live are certainly two of the 
fundamental rights of man, each interdependent upon the 
other. I f there is any meaning to the concept of citizen­
ship, or to the idea of natural and inalienable rights, that 
meaning has been confounded and flaunted by the un­
natural and unconstitutional action of the state courts.

To hold that free citizens cannot own property, or for 
that matter, can be restricted in the essential element of 
ownership, namely use( a distinction which Mr. Joseph 
Warren in 34 Harvard Law Eeview, 639 at 653, called 
specious) is to turn the clock back beyond the Statute of 
13 Edward 1. c. L, De donis, the Mortmain acts and the 
other splendid efforts to increase the free ownership and 
transfer of land.

If an ordinance forbidding the distribution of printed 
matter and the withholding of permits for public meet­
ings in streets and other public places was unconstitu­
tional (Haguev. C. I. 0. 307 U. S. 496), then how much 
more offensive is the action of the state through its of­
ficers in the instant case in denying the right to live to



59

a people, compressed as they are on the south side of the 
City of Chicago, Illinois. (R. 181.)

CONCLUSION.

In the light of the propositions of law heretofore ad­
vanced and the arguments made in support thereof, we 
respectfully submit that the judgment of the Supreme 
Court of Illinois, affirming the judgment of the Circuit 
Court of Cook County, be reversed, set aside and declared 
for naught.

Respectfully submitted,

E a r l  B. D ic k e r s o n ,
T r u m a n  K .  G ib s o n , J r .,

C. F r a n c is  S tr a d fo r d ,
L o r in g  B. M o ore ,
I r v in  C . M o l l is o n ,

Atotrneys for Petitioners.





1









S u p re m e  C o u r t  of tije M n tte b  S ta te s ;
October T erm, A. J). 1940.

IN  T H E

H o. 29.

Carl A. H ansberry, N annie L. H ansberry; S upreme 
L iberty L ife I nsurance Company, an Illinois 
Corporation, H arry H . P ace, James Joseph 
B urke and I srael K atz,

Petitioners,
v.

Anna M. L ee, E dward L. Go van its, E sther Govanus, 
Louise G. A nderson, L ym an  M. A nderson and 
K athryn L uttrell,

Respondents.

W R I T  O F  C E R T I O R A  III  T O  T H E  S U P R E M E  C O U R T  O F  T H E  S T A T E

O F  I L L I N O I S

BRIEF FOR RESPONDENTS.

A nous R oy S h ann< > n , 
McK enzie S h an non, 
W illiam C. Graves, 
Preston B. K avanagh, 
R andolph T hornton, 
A ttorneys fo r  Respondents.

P ress o r  B t r o n  S. A d am s , W a s h in o t o n . I ). 0 .





SUBJECT-INDEX.
Page

Opinions B e low ..................................................................  1
Jurisdiction.......................................................................... 2
Statement.............................................................................. 3-14

Covenant..........................................................................  4
Pleadings..........................................................................  5-7
Conspiracy.......................................................................  8
D ecree............................................................................... 13

Summary of Argum ent..................................................... 14
Argument.............................................................................  15

1. The Finding of Fact by the Illinois Supreme
Court That the Only Fraud in This Record is on 
Petitioners is Supported by Competent Evidence 
and Conclusive Here .................................................  15

2. Restrictive Covenants Such as This are Valid and
do Not Offend the Federal Constitution.............. 19

3. The Illinois Law Enforces the Doctrine of Res
Judicata in Representative S u its ...........................  23

4. The State Court Decree Does Not Offend the
Fourteenth Amendment ...........................................  33

5. Specific Performance Does Not Offend the Four­
teenth Amendment ...................................................  36

6. The Record Supports the Injunction Against Katz 38
7. The Insurance Company is Not Exempt as a Mort­

gagee .............................................................................. 39
8. Conclusion....................................................................  40

TABLE OF CASES.
Bayer v. Block, 246 111. App. 416...................................  28
Burke v. Kleiman, 277 111. App. 519..........2, 3, 4, 5, 7, 9,11,

13,15,16,17,18, 22, 30 
Colgate v. Harvey, 296 U. S. 404.....................................  35
Cook v. Lutz, 37 S 6290 Superior Court Cook County, 

111................................................ 6



Index Continued.ii

Page
Cook v. Yondorf, 34 S 1261 Superior Court Cook

County, 111.....................................................................  3, 6
Cornish v. O ’Donoghue, 30 F. (2d) 983....................... 14,37
Corrigan v. Buckley, 299 Fed. 899..........................19, 20, 34
Corrigan v. Buckley, 271 U. S. 323..........................14,19,21
Covington v. 1st Nat. Bank of Covington, 198 U. S. 100. 33
Enterprise Irrig. Dist. v. Fanners Mutual Canal Co.,

243 U. S. 157 ..............................................................  35
Erie R. R. Co. v. Tompkins, 304 IT. S. 6 4 .....................  23
Fox River Co. v. R. R. Comm., 274 U. S. 651.............. 38
Greenberg v. Chicago, 256 111. 213 .................................  26
Groves v. Farmers State Bank, 368 111. 35.................. 23
Hanna v. Read, 102 111. 596 .............................................  26
Harding Co. v. Harding, 352 111. 426.............................  27
Kerfoot v. Farmers & Merchants Bank, 218 U. S. 281. . 19
Kersh Lake Drainage Dist. v. Johnson, 309 H. S.

485 ....................................................................14,18,19,33
Klus v. Ruszel, 353 111. 179 .............................................  29
Koehler v. Rowland, 275 Mo. 573.....................................  21
Lee v. Hansberry, 291 111. App. 517......................... 2, 4, 6, 22
Lee v. Hansberry, 372 111. 369 .........................................  2
Leonard v. Bye, 361 111. 185 ...........................................  24
Los Angeles investment Co. v. Gary, 181 Cal. 6 8 0 .... 21
Madden v. Kentucky, 309 U. S. 83.................................  36
Miedreich v. Lauenstein, 232 LT. S. 236 .........................  19
Oklahoma Packing Co. v. Gas Co., 309 IT. S. 4 .............. 33
Parmalee v. Morris, 218 Mich. 625.................................  21
Penoyer v. Cohn, 34 S. 16816, Superior Court of Cook

County, 111.....................................................................  4, 6
People v. Prather, 343 111. 443 .....................................  29
People ex rel. Modern Woodman v. Circuit Court, 347 

111. 34 ............................................................................  26
Phelps v. Chicago, 331 111. 8 0 .........................................  33
Plath v. Delauntv, 35 C 8078, Circuit Court of Cook

County, Illinois ........................................................... 5
Queensborough Land Co. v. Cazeaux, 136 La. 724. . . .  21
Russell v. Wallace, 30 F. (2d) 981.................................... 38
Schmidt v. Modern Woodman, 261 111. App. 276.......... 25
Svalina v. Saravaus, 341 111. 236 .................................  36
Torrev v. Wolfes, 6 F. (2d) 702 .....................................  38
Union and Planters Bank v. Memphis, 189 U. S. 7 1 ... 33
Waters-Pierce Oil Co. v. Texas, 212 U. S. 116.............. 19
Wright v. Geoi’gia R. R. and Banking Co., 216 U. S. 420 33



I N  T H E

S u p r e m e  C o u r t  of tfjc fH n itr b  S t a t e s
October T erm, A. D. 1940.

No. 29.

Carl A. H ansbebry, N annie L. H ansberry; Supreme 
L iberty L ife I nsurance Company, an Illinois 
Corporation, H arry H . P ace, James Joseph 
B urke and I srael K atz,

Petitioners,
v.

A nna M. L ee, E dward L. Govanus, E sther Govanus, 
L ouise G. A nderson, L ym an  M. A nderson and 
K athryn L uttrell,

Respondents.

W R I T  O F  C E R T I O R A R I  T O  T E E  S U P R E M E  C O U R T  O F  T H E  S T A T E

O F  I L L I N O I S

BRIEF FOR RESPONDENTS.

THE OPINIONS BELOW.

A temporary injunction in this case was issued by the 
Circuit Court o f Cook County, Illinois, on July 8,1937. 
It is not reported but appears at page 20 o f the record



2

and was affirmed on interlocutory appeal in Lee  v. 
H ansberry, 291 111. A pp. 517. The final decree o f the 
Circuit Court was entered August 19, 1938. I t  is not 
reported but appears at page 72 o f the record. The 
opinion o f the Supreme Court o f Illinois is reported at 
372 111. 369, (R . 327-336) and the principal case relied 
upon as res judicata  therein is B urke v. Kleinian, 277 
111. App. 519. Rehearing was denied December 13, 
1939 and certiorari granted by this court on A pril 22, 
1940. (R . 340)

JURISDICTION.

Jurisdiction in this case is based upon Section 237 
(b ) o f the Judicial Code, as amended, Title 28 U. S. C. 
Section 344 (b ) . The petitioners argue upon several 
grounds that the decision o f the Supreme Court o f I lli­
nois denies them due process o f law under the Four­
teenth Amendment to the Federal Constitution.

Petitioners in their brief rely for reversal princi­
pally upon the ground o f fraud. This fraud is said to 
have occurred in a prior suit involving the same subject 
matter, that is, this particular restrictive covenant 
running with the land which bound the signers and 
their successors not to sell or lease their property to 
negroes for  a period o f approxim ately 21 years.

The trial court and the Supreme Court o f Illinois 
both held that the prior suit, B urke  v. Kleinian, 277 
111. App. 519, was res judicata upon the question o f the 
validity o f this restrictive covenant; that it was a class 
or representative action, binding all those who signed 
the covenant or as privies succeeded to the titles o f the 
signers. The trial court found, on the evidence, that 
petitioners here had conspired together by devious 
means to introduce negroes into a section restricted to 
white occupancy and that their acts were characterized 
by misrepresentation, deceit and fraud, including the



3

use o f a white man acting as a dummy purchaser for  
the negroes. The Supreme Court o f Illinois in addi­
tion to sustaining the ultimate fact o f the conspiracy 
rested its decision principally upon the doctrine o f res 
judicata.

Since the application o f the doctrine o f res judicata  
is prim arily a matter o f the law o f Illinois, the question 
here is limited to whether there is evidence to support 
the findings below that Burke v. Kleinian, supra, was 
a decision in a class or representative action, reached 
in good faith and not fraudulent or collusive. W e think 
that the evidence in support o f these findings is con­
clusive.

The other issues with respect to the application o f 
the decree to the individual petitioners do not appear 
to raise substantial federal questions.

STATEMENT.

This action is one o f several class suits instituted by 
property owners in the W ashington Park Subdivision 
of Chicago to enforce a covenant running with the land, 
of more than ten years standing, against ownership or 
occupation o f their real estate by negroes. The cove­
nant restricts some 550 parcels improved with resi­
dences and apartment buildings in an area about one- 
half mile square (R . 276A ). It  is bounded on the north 
by the great W ashington Park and on the east by the 
Midway and the University o f Chicago with its affili­
ated activities and other white occupancies. To the 
West is now negro occupancy and to the south, mixed. 
In no sense can it be called a white pocket in the black 
belt as petitioners contend. On the contrary aggres­
sive enforcement o f the covenant has made the subdi­
vision a fortified frontier protecting social and real es­
tate values for  many years.



4

The covenant appears in haec verba in B urke  v. K lei­
nian, 277 111. App. 519 and at pages 315-324 o f the rec­
ord. In  substance it provides that for  the best interests 
o f the parties and the property described, none should 
be sold, leased or permitted to be occupied by negroes 
fo r  a period o f approximately 21 years, providing the 
owners o f 95 per cent o f the frontage signed and re­
corded the agreement by December 31,1928. It further 
provides that the restrictions are to be considered ap­
purtenant to and running with the land and binding 
upon and for  the benefit o f each party and enforceable 
by any party by any permissible legal or equitable 
proceeding including injunction and specific perform ­
ance. The restrictions are made binding upon and for 
the benefit o f and enforceable by and against each party, 
his successors and assigns, and the heirs, executors, ad­
ministrators and successors o f them respectively.

It was executed on September 30, 1927, signed by 
the owners o f 95 per cent o f the frontage, according to 
the computation o f the W oodlawn Property Owners As­
sociation and recorded on February 1, 1928. Its exe­
cution and validity have been adjudicated and sus­
tained by the Superior Court o f Cook County, Illinois, 
in Cook v. Yondorf, General No. 34 S 1261 (R . 294); 
P en oyer  v. Cohn, General No. 34 S 16816 (R . 301); and 
the Illinois Appellate Court in B urke  v. Kleiman, 277 
111. App. 519, and Lee v. Hansberry, 291 111. App. 517. 
A ll o f these cases remain in full force and effect.

This complaint was filed in the Circuit Court o f Cook 
County in June, 1937. It  alleged the execution, record­
ing and validity o f the covenant as running with the 
land. It alleged that the six respondents (plaintiffs in 
the trial court) were owners o f restricted property who 
had signed the agreement or traced their title by mesne 
conveyances to signers thereof and that they were com-



5

plaining on behalf o f themselves and other plaintiffs 
similarly situated. It  alleged that petitioners (except 
the insurance company) were owners o f restricted 
property who had signed the agreement or traced their 
title by mesne conveyances to signers thereof. It al­
leged that the white Petitioner Burke, after resigning 
with bad feeling as an officer o f the W oodlawn P rop ­
erty Owners Association, threatened to put negroes in 
every block o f the subdivision and that in furtherance 
of this threat, he conspired with the white dummy 
Crook to fraudulently conceal from  the First National 
Bank o f Englewood, that Crook was purchasing a re­
stricted parcel fo r  the colored Petitioners Hansberry, 
with mortgage money supplied by the Petitioner Su­
preme Liberty L ife  Insurance Company, o f which the 
colored Petitioner Pace is president. It further alleged 
that the white Petitioner Ivatz had threatened to sell 
his restricted property to negroes; that all o f the peti­
tioners had constructive notice o f the covenant; that 
Petitioner Burke had actual notice o f the covenant by 
reason o f the prior representative suit he brought in his 
w ife ’s name to enforce it in the Superior Court o f Cook 
County, General No. 567687, wherein the covenant was 
decreed to have been duly executed upon a stipulation 
of facts and in full force and effect, which was affirmed 
on appeal in B urke v. Kleiman, 277 111. App. 519; that 
Petitioner Katz had actual notice as a signer th ereof; 
that Petitioners Hansberry had actual notice by reason 
of a prior eviction from  property restricted by the same 
covenant for  fraudulently representing to a receiver 
of the Circuit Court o f Cook County that they were 
white, (P lath  v. Delaunty, General No. 35 C 8078) (R . 
277) and that Petitioner Pace had actual notice as a 
defendant in a prior suit still pending to evict him from  
property restricted by the covenant, which he likewise



6

acquired through the fraud o f Burke with mortgage 
money from  the insurance company o f which he is pres­
ident. Cook v. Lutz, Superior Court o f Cook County, 
General No. 37 S 6290 (R . 131). The complaint asked 
that the fraudulent deed from  the white dummy Crook 
to the colored Petitioners Hansberry be declared void 
and for  injunctive relief and specific performance. (R . 
1-14.)

Petitioners’ motion to strike the complaint attacked 
the execution and validity o f the covenant under Illi­
nois law and alleged its enforcement would deprive 
them o f their property without due process and deny 
them equal protection o f law under the Federal Consti­
tution. The motions were overruled and a preliminary 
injunction restraining Burke and Katz from  selling or 
leasing restricted property to negroes, Pace and the Su­
preme Liberty L ife  Insurance Company from  making 
loans on restricted property to or fo r  negro occupancy 
(R . 21) and ordering the Hansberrys to vacate within 
90 days or be ousted by a writ o f assistance, was sus­
tained on interlocutory appeal. {Lee  v. H ansberry, 291 
111. A pp. 517)

A fter a change o f venue, the answers came in attack­
ing again the execution and validity o f the covenant 
under Illinois law and the Federal Constitution. Re­
spondents moved to strike the answers on the ground 
that the execution and validity o f the covenant had been 
sustained in the three prior class suits; B urke  v. K lei­
nian, 277 111. A pp. 519; Cook v. Yondorf, Superior 
Court o f Cook County, General No. 34 S 1261 (R . 294); 
and P en oyer  v. Colin, Superior Court o f Cook County, 
General No. 34 S 1681 (R . 301) and form ally pleaded 
res judicata  as an estoppel by verdict against all o f the 
petitioners and as an estoppel in bar by judgment 
against Petitioner Katz, who signed the covenant and



7

Petitioners Burke, Hansberry and Pace, who derived 
title through signers o f the covenant.

The Chancellor proceeded to a trial on the merits 
without settling the pleadings, reserving his ruling 
thereon in the following order:

“ This matter coming on to be heard on the plea 
o f counsel fo r  plaintiffs that the case o f B urke v. 
Kleim an  be held res judicata  as to the issues in­
volved herein, on certain objections filed to the an­
swers, and motions o f the several defendants to 
dissolve the temporary injunctions heretofore is ­
sued herein, the court having examined the plead­
ings herein and heard the arguments o f counsel for  
the respective parties and being fu lly  advised in 
the premises,

“ It  is hereby ordered that the matter proceed to 
a hearing and trial o f the merits, and that ruling 
o f the court upon the above plea, objections and 
motions be reserved until after the cause has been 
heard on its m erits” . (R . 54)

Respondents thereupon introduced in evidence the 
covenant and the pleadings and decree in the prior class 
suit o f B urke  v. Kleiman, 277 111. A pp. 519. In  the 
stipulation therein, neither party admitted the mate­
riality, relevancy, or competency o f the facts stipulated, 
each reserving the right to offer further and other evi­
dence on these and other issues (R . 279). W ithout lim­
itation, therefore, the court had jurisdiction o f every 
issue which either party could have urged, and so re­
cited in its decree. (R . 236-243.) Respondents then 
established that all parties plaintiff and defendant (ex ­
cept the insurance com pany) had signed the agreement 
or taken their titles subject to the covenant from  per­
sons who had signed it, and proved as the trial court 
found, that Burke, a disgruntled form er head o f the 
white property owners association o f the district, had



8

form ed a conspiracy with the other petitioners in this 
court to destroy the effect o f the restrictive covenant 
by introducing negroes into the restricted d istrict; that 
in pursuance o f what the trial court called a “ fraudu­
lent scheme” , Burke persuaded a white man named 
Crook to offer to purchase the premises at 6140 Rhodes 
Avenue, which was subject to the covenant and, by 
“ misrepresentation, deceit and frau d ” , prevailed upon 
the owner o f the premises to sell to C rook ; that Crook 
was not a bona fide purchaser but was acting for  and 
on behalf o f petitioner Carl Hansberry, a negro; that 
this purchaser was financed by petitioner life  insurance 
company, o f which petitioner Pace was president; that 
Crook thereupon conveyed the premises to Hansberry 
and his wife, who took possession; and that these acts 
“ were a part and parcel o f the fraudulent scheme and 
conspiracy inaugurated by James Joseph Burke that 
said restricted area would be no longer free o f negro 
inhabitants” . (R . 80-81.)

A t the close o f respondent’s ease in chief, the follow­
ing objection to the introduction o f any evidence by 
petitioners with respect to the execution or validity of 
the covenant was noted:

“ In  order to expedite matters as far as possible 
so there w on ’t be a constant run o f objections 
here any more than is necessary, I  want to make a 
general objection such as the other side did in ref­
erence to our testimony— that is, i f  it is agreeable 
to the Court and counsel to have a general objec­
tion and have it carried through without m y ha ving 
to repeat it each time—in this behalf.

“ That as to the defendants Israel Katz, Carl A. 
Hansberry, Nannie L. Hansberry, J. B. Crook, 
Hallie C. Crook, James Joseph Burke and Harry 
H. Pace, each o f whom is shown by the record to 
have either signed the Restrictive Agreement in-



9

troduced in evidence as P laintiffs ’ Exhibits 5, 5-A, 
B and C, or are persons in privity o f estate as 
grantees either direct or remote, o f persons who 
had signed the Agreement, we object to them, or 
any witnesses fo r  them, or any documentary evi­
dence which seeks to attack the validity o f  that 
Agreement as being estopped by reason o f being 
grantees and in privity o f estate.

“ Then as to all o f the defendants we object to 
any testimony by them or on their behalf which in 
any way seeks to attack or deny the execution, the 
deliver}^, the existence, the compliance with the 
conditions precedent, the enforceability o f the R e­
strictive Agreement admitted in evidence as P lain­
tiffs ’ Exhibits 5 and 5-A, B  and C, because o f the es­
toppel, by verdict against each and all o f  the de­
fendants ; from  attacking the validity, the delivery, 
the execution, the existence and enforceability o f 
that agreement, by reason o f res judicata  through 
the judgment and the decree o f the Superior Court 
o f Cook County, Illinois, entered in the case o f 
Burke v. Kleinian et al., Gen. No. 567887, entered 
on October 2, 1933, being a class suit, which decree 
also was affirmed by the Appellate Court on N o­
vember 27, 3934, in the Appellate Court for the 
First District, case No. 37522, entitled there B urke 
v. Kleinian, et al.”

*  #  *  *  *  *  *

The C ourt: “ I  think that is verv satisfactory.”  
(R . 283.)

Subject to this objection, petitioners introduced evi­
dence to the effect that the required number o f frontage 
owners had not signed the agreem ent; that the acknowl­
edgements were not in order and that the character o f 
the neighborhood had changed. The distorted impres­
sion o f this evidence created by petitioners’ brief, calls 
for corrections here. On page 11, the evidence that 
less than the required number o f frontage owners



1 0

signed the covenant was excluded as incompe­
tent when respondents’ objection was sustained. 
On page 11, it is said the signature o f Petitioner Katz 
was obtained by fraud and trickery, with citations to 
pages 60-61 and 172 o f the record. The first refers to 
an averment in K atz ’ amended answer and the second 
to his abstracted testimony. W e ask the court to read 
the latter and direct its attention to the testimony o f 
respondent’s witness Sheedy who took the signature 
and acknowledgment (R . 189, 319, 323) and to Chan­
cellor B ristow ’s remark that K atz ’ testimony “ wasn’t 
very satisfactory or convincing”  (R . 197). On page 11 
and 12 o f petitioner’s brief, it is stated that the proof 
shows none o f the signatures were acknowledged ac­
cording to Illinois law. The citation in support o f this 
statement (R . 144-5) is an objection made by petition­
e r ’s counsel and the testimony o f respondent’s witness 
Sheedy referred to supra (R . 189). On page 12, the 
reference to the testimony o f respondent’s witness 
Sommerman is not complete. W hile it is true she said 
she did not go through any form ality in acknowledging 
her signature, she added on redirect that she did not 
know what an acknowledgment was (R . 92-3, 318, 320). 
In  view o f the fact that the restrictive agreement was 
signed and acknowledged more than ten years prior to 
the date o f taking testimony in this case, it is not to be 
wondered that the recollection o f the witnesses should 
be a little hazy on this point. The Illinois courts prop­
erly paid no attention to it.

On page 7, petitioners state as a fact that more than 
125 colored families have lived in the restricted area 
fo r  three to five years before this suit was filed. The ci­
tation (R . 58) is to another averment in K atz ’ amended 
answer.



1 1

W ith respect to the prior suit o f B urke v. Kleiman, 
petitioners’ brief states at page 16 that B urke’s A n­
swer (R . 31-32) charges the invalidity o f the agree­
ment was known to the officers o f the association at the 
time the several suits to enforce it were filed and that 
this charge was never rebutted. A  careful reading o f 
B urke’s answer reveals no such allegation, as the Su­
preme Court o f Illinois pointed out (R . 330-331). He 
states under oath that the first time he “ believed”  the 
covenant to be invalid was four months before the 
Hansberry transaction o f May 27, 1937 (R . 269). 
Burke filed the Kleiman complaint in his w ife ’s name 
four years before acquiring his belief that the covenant 
was defective (R . 229). He was active in the associa­
tion at that time and alleges he acted in good faith in 
that suit. H is only reference to officers o f the associa­
tion is that they conducted no investigation o f the 
signed frontage before the attorneys signed the stipu­
lation.

Two o f  the three living defendants in the prior suit, 
Isaac Kleiman and Dr. James L. Hall, a colored physi­
cian, testified for  petitioners that they did not employ 
counsel or authorize a stipulation o f facts in that case 
(R. 171). In referring to this testimony on page 17 o f 
their brief, petitioners fail to disclose that a fourth 
defendant, one Charles A. Sopkin was the attorney who 
represented his co-defendants. (R . 236.) The testi­
mony o f the witnesses, Kleiman and Hall, was the only 
evidence offered by the petitioners on the trial o f this 
case, as to the institution or conduct o f the case o f 
Burke v. Kleiman. Their testimony is the sole evidence 
in the record upon which petitioner’s charges o f fraud 
are founded.

At the close o f petitioner’s evidence, respondents 
elected to stand on their plea o f res judicata; their



1 2

general and specific objections that petitioner’s com­
putations o f  frontage and ownership were based on 
tract books twice removed from  the original plats (R . 
285), which were not legible (R . 287), and did not show 
the situation as it existed in 1928 (R . 285), but ante­
dated, in part, the Great Chicago F ire o f 1871 (R . 285). 
The witness had no personal knowledge o f their accu­
racy (R . 285), which was questioned by the Chancellor, 
who said, “ M y point is this. There must be something 
lacking in these tract records to bring about such a 
tremendous discrepancy”  (R . 291), and which in­
cluded a substantial amount o f public school, play­
ground and church frontage not contemplated by the 
covenant to show the signed frontage was less than the 
required 95 per cent (R . 287-8). Respondents also 
relied on the sworn affidavit o f Charles A. Churan, 
counsel for  the W oodlawn Property Owner’s Associa­
tion that the owners o f more than 95 per cent o f the 
frontage had signed the agreement, according to a chart 
showing dimensions o f lots and blocks kept by the A s­
sociation in January, 1928 (R . 208). Respondents fu r­
ther relied upon the sworn affidavit o f George W . Cook, 
a director o f the association, that he kept a personal 
check on the property signed by marking it on a chart 
with colored crayon and knows positively and by care­
ful measurements that more than 95 per cent o f the 
frontage was signed before February 1, 1928, a fact 
which was verified at a mass meeting o f the association 
and a resolution passed to that effect just before the 
agreement was recorded. (R . 209.) Respondents fur­
ther relied on their amended complaint which reduced 
the total frontage involved (R . 54) and their showing 
that additional signatures were recorded on December 
29, 1928. (R . 208.)

The decree found (1 ) Petitioners in court with un­
clean hands and thereby estopped from  attacking the



13

prior adjudication o f  the execution and validity o f the 
covenant in B urke  v. Kleiman, (2 ) Respondents to be 
members o f a class having common rights requiring 
protection, (3 ) Petitioners (except the insurance com­
pany) to be members o f the same class as signers or 
remote grantees o f persons who signed the agreement 
and bound thereby, (4 ) B urke  v. Kleim an  to be a class 
suit properly pleaded and proved as res judicata  to the 
execution and validity o f the covenant, (5 ) the cove­
nant to be in full force and effect and running with 
the land, (6 ) Petitioners (including the insurance com­
pany) guilty o f the conspiracy to violate the covenant 
and (7 ) the Hansberrys in unlawful possession o f the 
restricted property and that the deed to them was void 
and a nullity. It  made the temporary injunction per­
manent and specifically enforced the covenant. It  re­
lieved the petitioner Hansberry from  suffering fo rfe i­
tures, however, by ordering a master to reconvey Hans­
berry’s title to his grantor, Crook, (the last white 
owner), i f  Hansberry did not himself comply with the 
covenant by conveying it to someone other than a negro 
within thirty days. (R . 72.)

Page 17 o f Petitioner’s brief draws unwarranted de­
ductions from  the affidavit o f Fred L. Helman, filed in 
support o f a motion for  a new trial, which appears at 
pages 203-6 o f the record and speaks fo r  itself. He al­
leges that he knew from  a personal investigation in 
1929 that less than the required number o f frontage 
owners signed the covenant but does not, as petitioners 
imply, state that he ever communicated this inform a­
tion to his fellow  officers o f  the Association in his con­
ferences with them. This is another malicious attempt 
of petitioners to surround the case o f B urke  v. Kleiman  
with fraud when, in fact, no fraud existed and the affi­
davit is no foundation fo r  the announcement that the



14

officers o f the association knew the agreement was in­
valid when that suit was filed.

The motion was denied and an appeal perfected to 
the Supreme Court o f Illinois which affirmed the de­
cree in all respects. The question o f fraud was directly 
raised in that appeal and the court held that i f  any 
fraud appeared in the case, it was that o f Burke, act­
ing pursuant to his threat to put negroes in every block 
o f the restricted area. (R . 331.)

SUMMARY OF THE ARGUMENT.

The finding o f fact by the Supreme Court o f Illinois 
that the only fraud in this record is on the petitioners 
is supported by the evidence and conclusive. K ersh  
Lake Drainage D istrict v. Johnson, 309 U. S. 485. R e­
strictive agreements by private property owners against 
ownership or occupation o f their land by negroes for 
twenty-one years are valid and do not offend the Fed­
eral Constitution. Corrigan  v. B uckley, 271 U. S. 323. 
A  negro who secured title to restricted property by 
fraud has no standing in a court o f equity to question 
the bar o f res judicata  o f a prior class suit as to the 
execution and validity o f the covenant. Specific per­
formance o f the covenant running with the land does 
not deny him due process. Cornish v. O ’Donoghue, 30 
Fed. (2d) 983. Katz signed the agreement and is prop­
erly enjoined from  carrying out his threat to sell to 
negroes. The proviso in the covenant protecting m ort­
gages from  impairment does not permit the Supreme 
Liberty L ife  Insurance Company, as mortgagee, to in­
duce breaches o f the private contract and it is properly 
enjoined from  so doing. There being no substantial 
federal question, the Supreme Court o f Illinois should 
be affirmed or the writ dismissed fo r  want o f jurisdic­
tion.



15

ARGUMENT.

1. The Finding of Fact by the Illinois Supreme Court That the Only Fraud 
in This Record is on Petitioners is Supported by Competent Evidence 
and Conclusive Here.

Tlie petition and briefs in support thereof have at­
tempted to distort as fraudulent the facts proved in 
this record to such an extent that we will consider it 
first. There appears to be no controversy about the 
conspiracy in the present case, which is supported by 
the record, i f  not admitted by petitioners. However, 
they have consistently tried to create a suspicion o f 
fraud in the prior case o f B urke  v. Kleiman, which has 
been held res judicata  here. Eliminating respondent’s 
pleadings, the testimony o f their witnesses and pro­
nouncements o f the courts, that case is referred to in 
this record exactly four times. It  is found in petition­
er’s pleadings, o f which B urke’s answer is typical. 
As pointed out in our statement o f facts, he alleged 
under oath that he acted in good faith when he sued 
Kleiman in his w ife ’s name and did not believe the 
covenant lacked sufficient signatures until four years 
later. (R . 31.) It next appears in the testimony o f 
Kleiman and Hall, defendants in that suit, who testi­
fied fo r  petitioners that they neither employed counsel 
in that case nor authorized a stipulation. (R . 171-172.) 
But i f  their testimony is to be believed, it then appears 
that they were served with process and thereafter ig­
nored the case entirely, although it was fought vigor­
ously by one o f their co-defendants through the A p ­
pellate Court o f Illinois and culminated in a decree 
against them fo r  costs and in a writ o f assistance to 
remove Hall from  the premises involved in the suit. 
(R. 236-246.) It appears more probable that they left 
the defense o f the suit entirely to attorney Sopkin, 
their fellow defendant. To infer otherwise would be



1 6

to disregard human nature unless these witnesses were 
so in the habit o f being sued that they thought noth­
ing o f it in this instance. It next appears as P lain­
t i f f ’s Exhibits 28, 29 and 30, which are the opinion and 
mandate o f the Illinois Appellate Court and the stipu­
lation o f facts therein. (R . 278.) These exhibits are 
competent evidence. Its final appearance is in the 
Helman affidavit in support o f the unsuccessful mo­
tion fo r  a new trial (R . 203-206) wherein he states he 
knew from  a personal investigation that 95 per cent 
o f the frontage had not signed the covenant but did 
not state that he communicated his discovery to his 
fellow officers in the association at the time B urke  v. 
Kleim an  was instituted. Under Illinois law, plead­
ings and affidavits are not evidence unless offered and 
received as such. Neither petitioner’s pleadings nor 
H elm an’s affidavit were placed in evidence. W e sub­
mit that the competent evidence before the Chancellor 
with respect to the prior suit o f B urke  v. Kleim an  con­
sisted o f the pleadings, appearances, stipulation, de­
cree and mandate o f the Appellate Court in support 
o f its validity and the adverse testimony o f Kleiman 
and Hall, defendants therein, which was entitled to 
whatever weight the Chancellor gave it. There is 
nothing whatever in this record to support the conten­
tion that plaintiff and defendants in B urke  v. Kleiman  
were in any way in collusion or that any o f them had 
any thought that the restrictive covenant lacked the 
necessary signatures after four years o f operation and 
enforcement.

On the appeal below, we assigned as a cross-error 
that part o f the so-called decision o f the court wherein 
the learned Chancellor took it upon himself to quote 
Petitioner Burke to the effect that the prior suit of 
B urke  v. Kleiman  was fraudulent and collusive (R.



17

193.) The fact is that Burke did not testify in this 
case at all. W e also assigned as a cross-error that part 
o f Finding 20 which holds that “ in this cause, he 
(B urke) represents”  the prior suit o f B urke v. K lei­
nian to have been collusive. (B . 84.) The only rep­
resentations made by Burke on this record are the 
self-serving averments contained in his answer, which 
are not competent evidence as heretofore pointed out.

However, Burke in his answer did not allege that 
Burke v. Kleinian was a collusive suit but on the con­
trary stated that it was brought in good faith at a time 
when he believed the restrictive covenant to be in full 
force and effect. (R . 31.) In  response to our request 
for a specific ruling on this question o f fraud with 
respect to B urke  v. Kleim an, the Supreme Court o f 
Illinois found as fo llow s:

“ W e see no merit in the contention that B urke 
v. Kleinian, supra, is not res judicata  because the 
fact o f due execution was established by stipula­
tion. There is no evidence o f fraud or collusion 
in that case. Defendant Burke, who was beneficial 
owner o f p la intiff’s property, avers in his answer 
here that that suit was instituted at the instance 
o f the W oodlawn Property Owners Association, 
whose purpose was the enforcement o f the restric­
tive agreement. That may be true, but there is 
no showing o f fraud or collusion in procuring that 
stipulation or that there was not an actual con­
troversy in the case. A t that time Burke was an 
officer o f  the W oodlawn Property Owners Asso­
ciation. A fterwards he resigned his position and 
withdrew from  the association with ill feelings, and 
stated several times that he would put Negroes in 
every block o f that property. In  carrying out his 
threat, he falsely represented that prospective cus­
tomers were white. As far as the record shows, 
i f  any fraud was committed, it was by Burke



1 8

after he left the association. It does not appear 
that he was not acting in good faith in B urke  v. 
Kleim an, supra. * * * W e cannot agree that the 
court erred in overruling appellants’ motion to set 
aside the decree and for a new trial. This motion 
was supported by an affidavit o f Fred L. Helman, 
which recited that Helman was executive secre­
tary o f the W oodlawn Property Owners Associa­
tion from  1926 to 1933. The substance o f the affi­
davit is that he had charge o f the work o f obtain­
ing signatures to the restrictive agreement, and 
that at the time the case o f B urke  v. Kleiman, 
supra, was instituted, as a result o f his own in­
vestigation, he knew that the owners o f ninety-five 
per cent o f the frontage involved had not signed 
the agreement, and that he conferred with various 
officials o f the association in regard to the filing of 
that suit. The affidavit does not state that he 
communicated his inform ation to anybody, or that 
Olive Ida Burke or any individual o f the repre­
sentative class for  whose benefit the suit was 
brought, or any o f the officers o f the association, 
except Helman, knew o f this fact. A s fa r  as the 
affidavit discloses Helman is the only person who 
knew o f the defect. It  does not allege the suit was 
brought at the request o f the association or that it 
was not instituted by Mrs. Burke o f her own voli­
tion and in good faith, fo r  the benefit o f herself 
and the other members o f the class. The motion 
was properly denied.”  (R . 330-332)

W e submit that this is a finding o f fact by the Su­
preme Court o f Illinois, supported by competent evi­
dence and conclusive here. This court, by Mr- Justice 
Black, upheld a state court decision as res judicata  on 
unserved creditors in a class action in K ersh  Lake 
Drainage D istrict v. Johnson, 309 U. S. 485, at page 
492 in the follow ing language:



19

“ It is sufficient to state as to this contention that 
the issues o f fraud and collusion raise no ques­
tions which the Supreme Court o f Arkansas was 
not competent finally to decide. And the Supreme 
Court o f Arkansas points out that under control­
ling Arkansas law the Chancery decrees ‘ could 
only have been set aside on appeal or by direct 
action to annul them on the ground o f fraud, and 
as we have said no appeals were taken, and no 
fraud on the court in which the decrees were ren­
dered, is reflected by this record.’ ”

See also W aters-P ierce Oil Co. v. Texas , 212 U. S. 
116, 117; K erfoo t  v. Farm ers and Merchants Bank, 218 
U. S. 281, 288; Miedreich v. Lauenstein, 232 U. S. 236, 
243.

2. Restrictive Covenants Such as This Are Valid and do Not Offend the
Federal Constitution.

The common law right o f private land owners to 
contract for  the control and disposition o f their own 
property by executing and recording a covenant run­
ning with the land, by which they bind themselves, their 
heirs and assigns not to sell, lease or permit negroes 
to occupy their property for  21 years was settled by 
the leading case o f Corrigan v. B uckley, 299 Fed. 899, 
which was dismissed on appeal by this court for  want 
of jurisdiction. Corrigan v. B uckley, 271 U. S. 323. 
Except fo r  the publicity value, there is no essential 
difference between these covenants and one which fo r ­
bids the premises o f the signers to be sold or used fo r  
commercial purposes fo r  a limited time. In  such in­
stances, as here, property owners place a partial re­
striction upon the use to which their property may be 
put for  the purpose o f protecting the value o f each 
parcel and their own investment. There has been no 
showing here that negroes are unable to purchase prop-



2 0

erty outside this small restricted area. In  the absence 
o f  such a showing there can be no violation o f a Fed­
eral right. In  the Corrigan case, the Court o f Appeals 
fo r  the District o f Columbia decided the covenant was 
not offensive to public policy, the rule against perpe­
tuities or too harsh to be enforced between parties to 
the agreement. I t  was contended that the covenant 
deprived defendant and others o f property without 
due process o f law, abridged the privileges and im­
munities o f citizens o f the United States, and denied 
defendants equal protection o f law in contravention 
o f the F ifth , Thirteenth and Fourteenth Amendments 
and certain statutes in aid thereof. In  disposing o f 
this argument, Mr. Justice Van Orsdel said at page 
901:

“ Appellant seems to have misconceived the real 
question here involved. W e are not dealing with 
the validity o f a statute, or municipal law, or ordi­
nance; nor are we concerned with the right o f a 
negro to acquire, own, and use property ; nor are 
we confronted with any pre-existing rights which 
are affected by the covenant here in question. The 
sole issue is the power o f a number o f landowmers 
to execute and record a covenant running with the 
land, by which they bind themselves, their heirs 
and assigns, during a period o f 21 years, to prevent 
any o f the land described in the covenant from  
being sold, leased to, or occupied by negroes.

“ The constitutional right o f a negro to acquire, 
own, and occupy property does not carry with it 
the constitutional power to compel sale and convey­
ance to him o f any particular private property. 
The individual citizen, whether he be black or 
white, may refuse to sell or lease his property to 
any particular individual or class o f individuals. 
The state alone possesses the power to compel a 
sale or taking o f private property, and that only



2 1

fo r  public use. The power o f these property own­
ers to exclude one class o f citizens implies the power 
o f the other class to exercise the same prerogative 
over property which they may own. W hat is denied 
one class may be denied the other. There is, there­
fore, no discrimination within the civil rights 
clauses o f the Constitution. Such a covenant is en­
forceable, not only against a member o f the ex­
cluded race, but between the parties to the agree­
ment. ’ ’

In  reaching this result, the court followed a line o f 
well reasoned state court decisions: P  arm alee v. Morris, 
218 Mich. 625; Queensborough Land Co. v. Cazeaux, 
136 La. 724; Los Angeles Investm ent Co. v. Gary, 181 
Cal. 680; and K oehler  v. Rowland, 275 Mo. 573. On the 
appeal o f Corrigan v. B uckley  to this court, Mr. Justice 
Sanford characterized the non-federal questions as “ a 
part o f the common or general law in force in the Dis­
trict o f Columbia”  and said o f the alleged constitu­
tional questions, 271 U. S. 323, 330:

“ The F ifth  Amendment ‘ is a limitation only 
upon the powers o f the General Government, ’ Tal­
i'on v. Mayes, 163 U. S. 376, 382, and is not directed 
against the action o f individuals. The Thirteenth 
Amendment denouncing slavery and involuntary 
servitude, that is, a condition o f enforced compul­
sory service o f one to another, does not in other 
matters protect the individual rights o f persons o f 
the negro race. H odges v. United States, 203 U. S. 
1, 16, 18. And the prohibitions o f the Fourteenth 
Amendment ‘ have reference to state action exclu­
sively, and not to any action o f private individuals. ’ 
Virginia  v. Rives, 100 U. S. 313, 318, United States 
v. H arris, 106 U. S. 629, 639. ‘ It  is State action o f 
a particular character that is prohibited. Individ­
ual invasion o f individual rights is not the subject- 
matter o f the Amendment.’ Civil Rights Cases, 
109 IT. S. 3, 11. It is obvious that none o f these



2 2

Amendments prohibited private individuals from  
entering into contracts respecting the control and 
disposition o f their own property; and there is no 
color whatever for  the contention that they ren­
dered the indenture void .”

A s in other jurisdictions, the courts o f Illinois re­
gard the legality o f similar covenants to be settled 
by this litigation. The Illinois Appellate Court cited it 
as authority for  upholding the agreement at bar in 
B urke  v. Kleinian, 277 111. App. 519, (pleaded as res 
judicata  here) at page 533:

Appellants have not contended that the restric­
tions violate any o f the amendments to the United 
States Constitution, nor that they are against pub­
lic policy, hut complainant has seen fit to argue, at 
some length, that the restrictions do not violate the 
fifth, thirteenth or fourteenth amendments to the 
United States Constitution and that they are not 
against public policy. W hile it is entirely unnec­
essary, because o f appellants’ attitude, for  us to 
consider this argument, wTe may state that the fo l­
lowing authorities cited in support o f it sustain the 
position o f com plainant: Corrigan  v. B uckley, 299 
Fed. 899; Corrigan v. Buckley, 271 U. S. 323; Par- 
malee v. Morris, 218 Mich. 625; Queensborough 
Land Co. v. Cazeaux, 136 La. 724; Los Angeles In ­
vestment Co. v. Gary, 181 Cal. 680; K oehler  v. 
Howland,, 275 Mo. 573.

The case was again cited on the interlocutory appeal 
below by the same court in sustaining this covenant a 
second time. {Lee  v. ffansi)erry, 291 111. A pp. 517) and 
the Supreme Court o f Illinois regarded the law on this 
point as so well settled that it affirmed the covenant 
without comment. This determination o f its local com­
mon law by the highest court o f the state and o f alleged 
federal questions in harmony with the latest decision



23

o f this court should not be disturbed. See E rie R. R. 
Co. v. Tompkins, 304 U. S. 64, where Mr. Justice Bran- 
deis in delivering the opinion o f the court, said at p. 78:

“ Except in matters governed by the Federal 
Constitution or by Acts o f Congress, the law to be 
applied in any case is the law o f the State. And 
Avhether the law of the State shall be declared by 
its Legislature in a statute or by its highest court 
in a decision is not a matter o f federal concern. 
There is no federal general common law. Con­
gress has no power to declare substantive rules of 
common law applicable in a state whether they be 
local in their nature or ‘ general’, be they commer­
cial law or a part o f the law o f torts. And no clause 
in the Constitution purports to confer such a power 
upon the federal courts.”

3. The Illinois Law Enforces the Doctrine of Res Judicata in Representative
Suits.

Petitioners contend that one member o f a class may 
not be sued by representatives o f the class to enforce a 
common right. The reasoning that the interests o f the 
person sued are necessarily in conflict with those o f the 
class would prevent all manner o f class suits. Such is 
not the law o f Illinois which considers all members o f a 
class having common rights needing protection bound 
by the doctrine o f res judicata  in a proper representa­
tive suit. In  Groves v. Farm ers State Bank, 368 111. 
35, 47, 49, where the form er decree was an agreed one, 
the court said:

“ The Circuit Court o f  Jefferson County is a 
court o f general and original jurisdiction. Each 
appellant appearing in the petition to intervene 
and the motion to vacate was a party to the repre­
sentative suit instituted by Groves, as a creditor o f 
the State bank, to enforce the stockholders’ liabil­
ity, directly by name o r  by proper representation



24

as members o f a class. The stockholders, the State 
Bank and its Receiver, were named defendants. 
Not only the stockholders but the other creditors 
o f the State bank were also adequately represented. 
The Circuit Court, it is settled, has jurisdiction to 
entertain a representative suit in equity in which a 
remedy is furnished to a class o f individual who 
have common rights and who need protection, and 
where the remedy is pursued by a complainant who 
has the right to represent the class to which he be­
longs, other members o f the class are bound by the 
results in the case until the decree rendered is re­
versed on appeal ( Leonard  v. B ye, 361 111. 185). 
A ll the creditors were, accordingly, to be deemed 
parties to the cause. They are now bound by the 
antecedent proceedings. The final decision o f the 
Court therein binds all persons, whether stockhold­
ers or creditors o f the State bank * * *. Every ma­
terial issue and question raised in the intervening 
petition and motion to vacate was tried and con­
sidered on the merits by a court o f competent juris­
diction. In  particular, by a succession o f final de­
crees, not appealed from  , the trial court deter­
mined not only that the National bank was a credi­
tor o f the State bank but also the amount o f its 
claim. Under the circumstances disclosed by the 
record, the allegation that the Agreement o f Octo­
ber 4, 1930. was ultra vires and void, and that the 
trial court lacked authority to appoint a Receiver 
for  the liquidation o f the assets o f the State bank 
are insufficient, even if  true, to afford a basis for 
intervention. The Circuit Court, in refusing to al­
low appellants to re-litigate closed issues and 
thereby revive a lawsuit well terminated, cannot be 
said to have abused its sound judicial discretion.”

The case o f Leonard  v. B ye, 361 111. 185, 190, 192, is 
to the same effect:

“ However, the appellant contends that the 
equity suit is an absolute nullity so far as he is con-



25

cerned. He says that the Circuit Court has no ju ­
risdiction over his person, and that he is not bound,
‘ willy-nilly ’ by the gratuitous act o f complainants 
who say they represent him there. There can be 
no doubt that Circuit Courts have jurisdiction over 
representative suits. In  such suits the remedy is 
furnished to a class o f individuals who have com­
mon rights, who need protection, and in pursuit o f 
that remedy individuals have the right to repre­
sent the class to which they belong. The complain­
ants in the suit purported to represent the appel­
lant, who would be bound by the results in the case 
until the decree rendered there is reversed on ap­
peal. Greenberg  v. City o f Chicago, 256 111. 213; 
Harmon  v. Auditor o f Public Accounts, 123 id. 122, 
120 * * * The proceedings in the Circuit Court can­
not be said to be null and void, for courts o f equity 
have power to entertain representative suits. On 
appeal it might be successfully urged that the Cir­
cuit Court was proceeding erroneously in assuming 
equity jurisdiction and that its decree should be 
reversed. The Superior Court did not have before 
it any o f the proceedings in the prior suit and which 
it had no power to review. It properly refused 
to go into the question o f the Circuit C ourt’s equity 
jurisdiction over the representative suit. The adop­
tion o f the rule contended for  by appellant would 
be disruptive o f the orderly process o f  our courts 
and fatal to the well-known principle that there 
must be an end to litigation. W e find that the 
questions argued by appellant cannot be reached 
and passed upon.”

In Schmidt v. M odern W oodm en, 261 111. A pp. 276, 
281, the court said:

“ The Jenkins suit was brought in behalf o f the 
complainants and in behalf o f all other members 
o f the Society. It was a class suit. W here a bona 
fide B ill is filed and litigated by the representatives 
o f a class and the subject-matter o f the suit is com-



26

mou to all, the decree binds the entire class as fully 
as if  all were before the Court. People  v. Clary, 
296 111. 46” .

In  Greenberg  v. Chicago, 256 111. 213, 219, the bar 
was extended to all issues which might have been raised 
in the prior suit whether they were or not.

“ * * * the rule applies with particular force that 
the doctrine o f form er adjudications is not con­
fined to the questions actually decided, but it ex­
tends to all grounds o f recovery or defense which 
existed and might have been presented. * * * The 
complainants in this proceeding were represented 
by the complainants in the form er suit and are 
therefore bound by the decree therein entered. The 
remedy in suits o f the character here indicated is 
in the interest o f a class o f individuals having com­
mon rights that need protection, and in the pursuit 
o f that remedy individuals have the right to repre­
sent the class to which they belong.”

And in P eople ex rel. M odern W oodm en  v. Circuit 
Court, 347 111. 34, 46, it was h eld :

“ The rule concerning res judicata  embraces not 
only what was actually determined in the form er 
case between the same parties or their privies, but 
it extends to any other matter properly involved 
which might have been raised and determined and 
to all grounds o f recovery or defense which might 
have been presented ( Phelps  v. City o f Chicago, 
331 111. 80; P eop le  v. Harrison, 253 id. 625; God- 
schalck v. W eber, 247 id. 269.”

A  document once held valid by a court o f  competent 
jurisdiction cannot be attacked by the parties or their 
privies in a subsequent suit. In  Hanna  v. Read, 102 
111. 596, 602, 606, it was h e ld :

“  * * * where some specific fact or question 
has been adjudicated and determined in a former



27

suit, and the same fact or question is again put in 
issue in a subsequent suit between the same parties, 
its determination in the form er suit, i f  properly 
presented and relied on, will be held conclusive 
upon the parties in the latter suit, without regard 
to whether the cause o f action is the same in both 
suits or not. This species o f estoppel is known to 
the law as an estoppel by verdict, and is equally 
available to a plaintiff in support o f  his action, 
when the circumstances warrant it, as when offered 
by a defendant as matter o f defense. * * * It  
is further objected that the parties to the form er 
and present suits are not the same. This objection 
we do not regard as tenable. It  is sufficient for  the 
purpose o f the rule relating to a form er adjudica­
tion, when relied on as an estoppel that the parties 
be substantially the same, and so we regard them in 
the present case. Thompson v. Roberts, 24 How. 
233; 7 Rob. Prac. 137; D rake v. P erry , 58 111. 122.”

Harding Co. v. Harding, 352 111. 417, 426, sets forth 
the Illinois law on res judicata.

“ The doctrine o f res judicata  is, that a cause o f 
action finally determined between the parties on 
the merits, by a court o f competent jurisdiction, 
cannot again be litigated by new proceedings be­
fore the same or any other tribunal, except as the 
judgment or decree may be brought before a court 
o f appellate jurisdiction for  review in the manner 
provided by law. A  judgment or decree so ren­
dered is a complete bar to any subsequent action 
on the same claim or cause o f  action between the 
same parties or those in privity with them. The 
doctrine extends not only to the questions actually 
decided but to all grounds o f recovery or defense 
which might have been presented. ' ( W right v. 
B rijfey , 147 111. 496; M arkley  v. People, 171 id. 
260; Terre Haute and Indianapolis Railroad Co. v. 
Peoria  and P ekin  Railway Co., 186 id. 283; God-



28

schalck v. W eber, 247 id. 269; P eop le  v. H arrison, 
253 id. 526. * * * W hether the adjudication re­
lied on as an estoppel goes to a single question or 
all the questions involved in the case, the funda­
mental principle upon which it is allowed is that 
justice and public policy alike demand that a mat­
ter, whether consisting o f one or many questions, 
which has been solemnly adjudicated in a court of 
competent jurisdiction, shall he deemed finally and 
conclusively settled in any subsequent litigation 
between the same parties where the same question 
or questions arise, except where the litigation is a 
direct proceeding fo r  the purpose o f reversing or 
setting aside such adjudication.”  * * *

In  B ayer  v. Block, 246 111. A pp. 416, 421, 423, 424, 
the doctrine was applied to a consent decree based on a 
stipulation:

“ In  the stipulation, filed in said chancery cause, 
it was agreed between all the parties that they 
‘ hereby waive further proceedings * * * and 
that an order o f court may be entered, reciting the 
facts and the making o f this agreement, etc. * * V  
In  Godschalck v. W eber, 247 111. 269, 274, it is said: 
‘ The doctrine o f res judicata  extends not only to 
the questions which were actually decided in the 
form er case, hut to the whole controversy, to all 
matters properly involved which might have been 
raised and determined, and to all grounds o f re­
covery or defense which the parties might have 
presented, whether they did so or not.’ (See also 
Stickney  v. Goudy, 132 111. 213, 231; South Park  
Corners, v. W ard & Co., 246 111. 299, 312) * * *. 
In  view o f these authorities, and applying them to 
the facts as disclosed in the present transcript and 
as above outlined, we are o f the opinion that the 
contentions o f defendant’s counsel are well 
founded; that the consent decree, entered in said 
equity suit upon motion o f complainants’ solicitor



29

and upon stipulation, is res judicata  o f  the contro­
versy in the present suit at law, and is, under the 
doctrine o f estoppel by verdict, a bar to any recov­
ery by plaintiffs herein, it appearing that the par­
ties to the two suits are substantially the sam e; and 
that the trial court erred, as a matter o f law, in 
entering the judgment appealed from , and that it 
should be reversed without remanding the cause.”

The bar covers newly discovered evidence, P eople  v. 
Prather, 343 111. 443; 447.

“ W e shall not consider at length the insufficient 
p roof presented in support o f these amendments, 
none o f which was verified by the testimony o f the 
drainage commissioners or clerk holding office 
seven (7 ) years earlier, (1920), when the acts are 
alleged to have taken place, because even newly 
discovered evidence does not prevent the applica­
tion o f res judicata. Many, perhaps a m ajority, o f 
the cases in which the doctrine o f res judicata  is 
enforced are cases in which facts have been dis­
covered after the adjudication, which, i f  they had 
been known at the form er trial, might have changed 
the result. A  judgment or decree which necessa­
rily affirms the existence o f any fact is conclusive 
upon the parties and their privies whenever the 
existence o f that fact is again in issue between 
them. ( Goidd v. Sternberg, 128 111. 5 1 0 )”

Res Judicata binds the form er parties and their priv­
ies in title and interest, K lus  v. Russel, 353 111. 179,183.

“ The answer o f the plaintiffs in error alleges 
the filing o f the B ill by Bialek on January 23,1925, 
in the Circuit Court, and the filing o f ‘the Cross 
Bill by Klus, and relies, among other things, upon 
the decree o f dismissal in that case as a final and 
conclusive adjudication o f the rights o f the par­
ties. The parties in this case are the same as the 
parties in the form er case or are privies in title and



30

interest with them, the subject matter, cause o f 
action and issue are the same and the quality in 
which the parties sue or defend is the same. The 
decision o f the form er case was upon the merits, 
and the fact that it was rendered on a demurrer is 
immaterial. ( Foss v. P eop le ’s Gas Light Co., 293 
111. 94.) It is binding on the defendants in error 
and conclusive o f  their rights.”

On the record below, the Supreme Court o f Illinois 
found the prior class suit o f B urke  v. Kleim an  was res 
judicata  on the due execution o f the covenant in this 
case and binding on the petitioners as signers thereof 
or privies in estate thereto by reason o f taking their 
titles subject to and with notice o f the restrictions run­
ning with the land. W e quote from  the opinion herein:

“ In  order to decide whether the question o f due 
execution is res judicata, it will he necessary to 
examine the case o f  B urke v. Kleiman, supra. 
That was a suit to enforce this same agreement. 
Olive Ida Burke, w ife o f James J. Burke, a defen­
dant in the case at bar, was plaintiff. The com­
plaint recited that she filed it ‘ on behalf o f herself 
and on behalf o f all other property owners in the 
district covered and affected by the agreement 
hereinafter mentioned, and who are, or whose 
grantors, direct or otherwise, were parties to said 
indenture o f agreement, and whose property inter­
ests will he adversely and injuriously affected by 
the violation hereinafter mentioned hv the said de­
fendants o f the covenants and terms o f said agree­
m ent.’ The defendants were Isaac Kleiman, the 
white owner, Sam Kleiman, James L. Hall, a Ne­
gro tenant, and Charles J. Sopkin, trustee of a 
trust deed on the property. The complaint al­
leged the agreement was signed by the owners of 
ninety-five percent o f the frontage and duly re­
corded February 1, 1928. A  stipulation was en­
tered into to this effect. The court recited the



3 1

stipulation in its decree and found that the facts 
stipulated were true. The court further found, 
‘ that said indenture was in full force, and effect 
on February 1,1928. and all conditions therein con­
tained with respect to execution and recordation 
thereof were fully complied w ith ;’ that ‘ all terms 
o f said indenture agreement are entirely valid and 
binding, ’ and that it is a covenant running with the 
land. This decree was affirmed by the Appellate 
Court.

“ It  thus appears that B urke  v. Kleinian, supra, 
was a class or representative suit. It  cannot be 
seriously contended that it was not properly a rep­
resentative suit. There was a class o f individuals 
who had common rights and who needed protec­
tion. They were so numerous it would have im ­
posed an unreasonable hardship and burden on 
them to require all members to be made parties to 
the suit. U nder such circumstances we have re­
peatedly held that a court o f  equity has jurisdic­
tion o f representative suits, and where the remedy 
is pursued by a plaintiff who has the right to rep­
resent the class to which he belongs, other members 
o f the class are bound by the results in the case un­
less it is reversed or set aside on direct proceed­
ings. Groves v. Farm ers State Bank, 368 111. 35; 
Leonard  v. B ye, 361 id. 185; Greenberg  v. City o f  
Chicago, 256 id. 213.”  (R . 329-330)

Respondents assigned as a cross-error in the appeal 
below that part o f F inding 7 wherein Chancellor B ris­
tow found “ from  the com petent p roo f adduced”  that 
the owners o f  less than 95 per cent o f the frontage had 
signed the agreement. A ll o f petitioner’s evidence with 
respect to execution was received subject to respon­
dent’s objection. It is our view that when the Chan­
cellor sustained the plea o f res judicata, all o f that 
proof was excluded as incompetent and not properly



32

before him. On this point the Supreme Court o f I lli­
nois said in its opinion (R . 330, 331) :

“ Appellants contend the doctrine is inapplica­
ble here fo r  the reason there was no class, since the 
evidence shows the requirement that the owners o f 
ninety-five per cent o f the frontage sign the agree­
ment, was not met. This argument loses sight of 
the fact that in B urke v. Kleinian, supra, the court 
had jurisdiction to determine whether or not that 
condition precedent had been complied with. The 
mere fact that it later appears that the finding is 
untrue does not render the decree any the less bind­
ing. The principle o f res judicata  covers wrong as 
well as right decisions, for  the fundamental reason 
that there must be an end o f litigation. A  matter 
which has once been determined by a court o f com­
petent jurisdiction cannot, in  a later suit involv­
ing the same subject matter and the same parties 
or members o f the same class, be again inquired 
into * * *. W e see no merit in the contention that 
B urke  v. Kleim an, supra, is not res judicata  be­
cause the fact o f due execution was established by 
stipulation. There is no evidence o f fraud or col­
lusion in that case. * * * In  our opinion the ques­
tions o f execution and validity o f the restrictive 
agreement are res judicata. The reasons assigned, 
in addition to these urged in B urke  v. Kleiman, 
supra, fo r  holding the agreement invalid cannot be 
considered. It is well settled that the doctrine of 
res judicata  extends not only to matters actually 
determined in the form er suit, but also embraces 
all grounds o f  recovery and defense involved and 
which might have been raised. B y  assigning new 
reasons fo r  holding the agreement invalid, which 
existed at the time that decision was rendered, the 
parties cannot relitigate the question settled by 
the prior decree. In re Northivestern University, 
206 111. 64; Midlinsky v. Rubin, 341 id. 378; People 
v. W ade, 351 id. 484; W ebb  v. Gilbert, 357 id. 340.”



33

(See also: Phelps v. City o f Chicago, 331 id. 80, 
p. 85.)

This court recognizes that res judicata  is a question 
o f state law. K ersh  Lake Drainage Co. v. Thompson, 
309 U. S. 485, 491. Oklahoma Packing Co. v. Gas Co., 
309 U. S. 4, 8 ; Union and Planters Bank v. Memphis, 
189 U. S. 71, 75; Covington  v. 1st National Bank o f  
Covington, 198 U. S. 100, 109; and W right v. Georgia 
Railroad and Banking Co., 216 U. S. 420, 429.

It follows that the decision below was rested upou 
a point o f state law adequate to support it. W e have 
shown that there was no fraud involved (except such 
as can be imputed to these petitioners) and, in the 
absence o f fraud, no federal question for  review by 
this Court is presented.

The opinion o f the Supreme Court o f Illinois does not 
mention petitioner’s contention that the application o f 
the doctrine in this case denies their rights to due 
process o f law as citizens o f the United States. The 
contention was forcib ly  urged below and it cannot be 
assumed to have been ignored. On the contrary, in 
balancing the equities, the court must have considered 
that petitioner’s own misconduct estopped them from  
attacking respondent ’s plea o f  res judicata  and that 
the decree binding them as members o f a class whose 
rights were represented in the prior suit does not o f­
fend the Fourteenth Amendment. This is the ques­
tion to which we shall next address ourselves.

4. The State Court Decree Does Not Offend the Fourteenth Amendment.

Section 1 o f the Fourteenth Amendment has been 
bandied about in such loose language by the Petition­
ers that a detailed examination o f it is in order. It 
contains three inhibitions on the States. The first bars



34

the making or enforcing o f any law which shall abridge 
the privileges or immunities o f citizens o f the United 
States. The second prevents the deprivation o f any 
person ’s life, liberty or property without due process 
o f law. The third prohibits the denial to any person 
within its borders o f the equal protection o f the laws.

W e are not concerned here with the first or third 
inhibitions. They were disposed o f in Corrigan  v. 
B uckley, 299 Fed. 899, wherein the court pointed 
out with respect to the first that the constitutional 
privilege o f a negro to own property does not carry 
with it the constitutional right to compel sale 
and conveyance to him o f any particular private prop­
erty. The court disposed o f the third inhibition by 
stating that the power o f the white owners to exclude 
negroes from  their property implies the power o f negro 
owners to exclude whites from  their property so that 
the law protects both classes equally.

W e are concerned with the second prohibition after 
eliminating the protection to life  and liberty. As ap­
plied to this case, it reads:

“ N or shall any State deprive any person o f  * * * 
property  without due process o f law.”

The first inquiry, therefore, is what property of 
these petitioners is involved. The record reveals that 
the only property o f which the state court could de­
prive any o f these petitioners is ITansberrys apart­
ment and restricted lot, which he acquired through 
the fraud o f his conspirators. The invocation o f this 
constitutional provision by all the other petitioners is 
therefore without merit. The decree complained of 
requires the white conspirator Burke to observe a re­
striction which was on his property before he acquired 
title and o f which he had actual knowledge. It re-



35

quires the white Petitioner Katz to abide by his own 
agreement with other property owners. It  requires 
the petitioner insurance company through the colored 
Petitioner Pace, its president, to stop inducing 
breaches o f a private contract. W ith due regard for 
the liberal construction which this constitutional safe­
guard should be accorded, as far as these petitioners 
are concerned, there is no property on this record for 
the due process clause o f the Fourteenth Amendment 
to protect.

In E nterprise Irrig . Dist. v. Farm ers Mutual Canal 
Co., 243 U. S. 157, 166, Mr. Justice Van Devanter said:

“ The due process clause does not take up the 
laws o f the several states and make all questions 
pertaining to them constitutional questions, nor 
does it enable this court to revise the decisions o f 
the state courts upon questions o f state law  Say- 
ivarcl v. Denny, 158 U. S. ISO, 186; Central Land 
Co. v. Laidley, 159 IT. S. 103; Castillo v. M cCon- 
nico, 168 IT. S. 674, 683-684.

Petitioners argue that their paramount and domi­
nant “ right to live and a place to live in ”  as free citi­
zens o f the United States have in some way been 
abridged by the Illinois Courts, citing Colgate v. H ar- 
vey, 296 U . S. 404, 427. In  this, they fall into the same 
error as the appellants in the Corrigan  case. P eti­
tioners are at liberty to acquire and exercise all o f the 
rights o f ownership o f real estate, including the right 
to exclude white people by private agreement among 
themselves, except the small area in Chicago which is 
subject to the restriction at bar. The decision o f the 
Illinois courts does not affect these rights in any way. 
It is argued that Colgate v. H arvey  extended the scope 
of the Fourteenth Amendment by recognizing federal 
rights stemming from  United States citizenship as



36

paramount and dominant to rights derived from  state 
citizenship. W hile we do not understand any such 
federal rights to be involved here we must point out 
that Colgate v. H arvey  has been expressly overruled 
in Madden v. K entucky, 309 U. S. 83, 93.

5. Specific Performance Does Wot Offend the Fourteenth Amendment.

The decree did not require Hansberry to convey his 
fraudulently acquired title without compensation. It 
afforded him thirty days to comply with the covenant 
by conveying to any person other than a negro fo r  any 
consideration o f his choice. The deed to him had been 
declared void and a nullity by the trial court and the 
Supreme Court o f the State o f Illinois. Here, by the 
provisions in the decree the court gave Hansberry the 
opportunity to save himself from  the penalties o f fo r­
feiture, despite the fraud he had perpetrated and fur­
ther protected him in the event he refrained from  act­
ing voluntarily, by placing the title back in his grantor 
and dummy, the last white owner to hold it, thus re­
m oving the continuing violation o f the covenant and 
remaking the title merchantable. It  but perform ed as 
to the title what the writ o f assistance did as to the 
possession in the enforcement o f the injunction. It 
stopped the continuing violation o f the covenant, as 
a proper incident in enforcing the decree, under the 
prayer fo r  general relief. No compensation was due 
to the tort feasor H ansberry in accomplishing this re­
lief. No property o f his was taken from  him. His 
deed was void and a nullity. He was entitled to no 
recompense as a price to be paid by these respondents 
to relieve them o f the fraud he had inflicted upon them. 
See Svalina v. Saravans, 341 111. 236, at p. 249:

“  It is insisted by appellants that the master and 
the decree found that the deed to Svalina should



37

be set aside as a cloud upon the title o f Anna 
Yelich but erroneously failed to return to Svalina 
the $500 loaned by him to Yelich. * * * In  Beid- 
ler v. Crane, 135 111. 92, it was held that a transfer 
o f property must not only be upon a good consid­
eration but it must also be bona fide; that even 
though the grantee pays a valuable, adequate and 
full consideration, yet i f  the grantor sells fo r  the 
purposes o f defeating the claims o f creditors and 
the grantee knowingly assists in such fraudulent 
intent, or even has notice thereof, he will be re ­
garded as a participant in the fraud, and that a 
deed fraudulent in fact may be set aside by cred­
itors, and it will not be permitted to stand fo r  the 
purpose o f reimbursement or indemnity. Several 
authorities were cited in that case supporting this 
holding. These authorities were sufficient to up­
hold the decree denying to Svalina any right o f 
reimbursement from  Anna Yelich fo r  the $500.”

W e submit that bringing the property within the 
terms o f the covenant was the only way its merchant­
able status could be restored so that the m aster’s deed 
would benefit Hansberry instead o f deprive him o f his 
property within the meaning o f the Fourteenth Amend­
ment.

The Court o f Appeals fo r  the District o f Columbia 
was faced with the suggested conflict between specific 
performance o f such a covenant and the Fourteenth 
Amendment in Cornish v. O ’Donoghue, 30 Fed. (2d) 
983, wherein the deed to the negro was recorded be­
fore suit was filed. The court rejected the Constitu­
tional objection and sustained a decree, declaring the 
deed void and enjoining the defendants “ forthwith 
peremptorily to remove themselves and all their per­
sonal property and that o f  each o f them from  the said 
premises”  without mention o f compensation. Similar



38

decrees were sustained in Torrey  v. W olfes, 6 Fed. (2d) 
702 and Russell v. W allace, 30 Fed. (2d) 981.

This court said in F ox  R iver Co. v. R. R. Comm., 274 
U. S. 651, 657:

“ It  is for  the state court in cases such as this to 
define rights in land located within the state, and 
the Fourteenth Amendment, in the absence o f an 
attempt to forestall our review o f the constitu­
tional question, affords no protection to supposed 
rights o f  property which the state courts deter­
mined to be non-existent. ’ ’

6. The Record Supports the Injunction Against Katz.

The decree obliges Petitioner Katz to abide by his 
own agreement with the other property owners who 
signed the covenant. H is signature and acknowledg­
ment are at pages 319 and 323 o f the record. In  1937, 
Katz was a witness in an administrative proceeding 
before the State Department o f Education and Regis­
tration at Chicago. He was asked, “ W ould  you sell 
your property at 6018 Vernon Avenue, Chicago, Illi­
nois, to the colored people, notwithstanding the agree­
ment that is recorded in the particular district, W ash­
ington Park District, in which your property is located 
and in which you, the owner, then owner o f your prop­
erty was a signer, or you rse lf?”  He replied under 
oath, “ Yes, I  would. I  would sell it to anybody that I 
could get a buyer to purchase it. I  would sell it now if 
I  could.”  (R . 122.) This evidence adequately sup­
ports the injunction against Katz and deprives him of 
nothing which is protected by the Fourteenth Amend­
ment.



39

The Insurance Company is Not Exempt as a Mortgagee.

Paragraph 3 of the covenant contains the following- 
proviso :

“ and provided, further, that the lien o f no m ort­
gage or trust deed in the nature o f a mortgage shall 
be impaired or invalidated by reason o f the breach 
o f any o f the provisions o f this agreement, whether 
any such breach shall have occurred prior or subse­
quent to the recording o f any such mortgage or 
trust deed; and provided, further, that nothing 
contained in the foregoing provisos shall in any 
manner im pair the right o f any person or persons 
interested to enforce at all times and against all 
persons the restrictions in this agreement con­
tained prohibiting the use or occupation o f all or 
any part o f said premises by a negro or negroes”  
(R . 316).

Petitioners contend that this exempts mortgagees 
from the operation o f the covenant and that the decree 
enjoining the Supreme Liberty L ife  Insurance Com­
pany from  making future loans on restricted property 
to or fo r  negroes was erroneous. A s we read the pro­
viso, its purpose is to protect mortgages on restricted 
property from  impairment in proceedings such as this 
to enforce the covenant. The decree complained o f does 
not impair this petitioner’s mortgage on the Hansberrv 
property. It protects the mortgage by restoring the 
property to a legal and merchantable status within the 
covenant. The proviso does not permit mortgagees to 
conspire in the future to induce breaches o f the private 
agreement between the property owners and thus de­
stroy the covenant. The evidence shows that is what 
this company was doing and the injunction simply re­
quires it to stop its unlawful activity under the prayer 
for general relief. It raises no federal question and 
should not be disturbed.



40

CONCLUSION.

W e have shown the private agreement between the 
property owners to be valid under Illinois law and not 
offensive to the Federal Constitution. A ll the petition­
ers, except the insurance company, which however was 
one o f the conspirators, either signed it or are privies 
thereto by reason o f having derived their titles from 
persons who signed it. A ll the petitioners had actual 
as well as constructive notice o f the burdens appurte­
nant to the restricted property. Their conspiracy to 
destroy it is o f record. On the day o f reckoning, they 
complain o f the loss o f certain defenses which they 
might have urged i f  the court had not bound them, as 
a matter o f local law, by a prior decision that the cove­
nant is valid. Their rights in the prior case were rep­
resented by a member o f the class to which they belong. 
They attack the prior case as fraudulent but the record 
is barren o f fraud— except their own. They charge 
there is no restrictive agreement because o f defects in 
its execution and place great reliance on the comments 
o f  the Chancellor in this regard. A s to this, it should 
be noted that the Chancellor with m anifest fairness to 
the petitioners, heard every defense they advanced, sub­
ject to our objection. W hen the record was complete, he 
sustained our objection, held the prior suit res judi­
cata and found petitioners estopped bv their own mis­
conduct to question the bar o f the prior suit. They 
have had their day in court and a fu ll and fa ir hearing. 
They have argued with great feeling that there is some­
thing unfair in obliging them to observe an agreement 
which they claim does not exist. W e think one o f the 
answers to this is that after nine years o f effective op­
eration, they voluntarily resorted to a fraudulent con­
spiracy to get around it.



41

W e respectfully request that the Supreme Court o f 
Illinois be affirmed or that the writ o f certiorari be dis­
missed for want o f jurisdiction.

A ngus R oy Shannon , 
M cK enzie S hannon , 
W illiam  C. Graves, 
P reston B. K avanagh, 
R andolph T hornton, 

A ttorneys fo r  Respondents.



■







)

Office - Supreme Caurl, U. 3,
IFTX-.TQID

OCT 22 1940

___________________ C L E R K

IN THE

Supreme Court of the United States
O ctober T e r m , A. D. 1940

No. 2 9

CARL A. HANSBERRY, NANNIE L. HANSBERRY,
et al.,

vs.
Petitioners,

ANNA M. LEE, EDWARD L. GOV ANUS, ESTHER 
GOVANUS, et al.,

Respondents.

ON WRIT OP CERTIORARI TO THE SUPREME COURT OF THE 
STATE OF ILLINOIS.

REPLY BRIEF OF PETITIONERS

EARL B. DICKERSON,
TRUMAN K. GIBSON, JR.,
C. FRANCIS STRADFORD,
LORING B. MOORE,
IRVIN C. MOLLISON,

Attorneys for Petitioners.

B a r n a r d  &  M il l e r . 33 S. Market St., Chicago. F r a  n k lin  0562

PETITION FOR CERTIORARI FILED MARCH 11, 1940. 
CERTIORARI GRANTED APRIL 22, 1940.







INDEX.

PAGE

Brinkeroff-Faris Trust & Savings Co. v. Hill, 281 U. S.
673 ...................................................................................... 12

Buchanan v. Warley, 245 IT. S. 60..................................... 10
Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S.

655 .................................................................................... 6
Chicago, Burlington & Quincy R. Co. v. Chicago, 166 

IT. S. 228.............................................................   10
Corrigan v. Buckley, 299 Fed. 899.......................................  14
Creswill v. Grand Lodge Knights of Pythias, 225 IT. S.

246 at 261................. J......................... '............................ 6
Davis v. Wechsler, 263 U. S. 22, 24..................... 7, 8,12,14
Enterprise Irrigation Dist. v. Farmers Mutual Canal 

Co., 243 IT. S. 157 at 166............................................... 15
Kansas City Southern Railway Co. v. Albers Commis­

sion Co., 223 U. S. 573 at 591....................................... 6
Kersh Lake Drainage Comm. v. Thompson, 309 U. S.

485 ...................................................................................  12
Madden v. Kentucky, 309 IT. S. 83 at 93.........................  16
Norris v. Alabama, 294 U. S. 587 at 590.......................  7
Patterson v. State of Alabama, 294 U. S. 600, 602... .7,14
Postal Cable Telegraph Co. v. Newport, 247 U. S. 464 12
Svelina v. Sarvans, 341 111. 236.......................................  17
Truax v. Corrigan, 257 U. S. 321, 324-5.......................  7
Wabash Railway Co. v. Adelbert College, 208 U. S. 38 12
Ward v. Board of County Commissioners of Love 

County, Okla., 253 U. S. 17, 22, 23......................12,13,14
Windsor v. McVeigh, 93 IT. S. 274.................................  12



I N  T H E

Supreme Court of the United States
O c to b er  T e r m , A. D. 1940

No. 2! 3

CARL A. HANSBERRY, NANNIE L. HANSBERRY,
et al.,

Petitioners,
vs.

ANNA M. LEE, EDWARD L. GOVANUS, ESTHER 
GOYANUS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE 
STATE OF ILLINOIS.

REPLY BRIEF OF PETITIONERS

JURISDICTION.

The statement as to jurisdiction in respondents’ brief 
is inaccurate in several respects.

The Petitioners argue not only that the decision of 
the Supreme Court of Illinois denies them due process of 
law under the 14th Amendment hut, as well, that by the 
decision the State of Illinois has abridged the privileges 
and immunities of each and all of the Petitioners as citi-



2

zens of the United States and has denied to each and 
all of the Petitioners the equal protection of its laws.

The petitioners in their brief reply for reversal upon 
each and all of the grounds urged in their brief. The 
charge of Petitioners of the denial of due process of 
law by wrongful application of the doctrine of res 
judicata is based upon the denial of the fundamental re­
quirements of due process of law, to-wit, notice, the 
benefit of notice, the right to appear and to a real oppor­
tunity to defend. These rights were denied the petitioners 
independently of the fraudulent jurisdictional character 
of the Burke v. Kleiman proceedings held as res judicata 
against the petitioners. By sustaining the Burke v. Klei­
man proceedings as res judicata, and holding thereby that 
the said proceeding was a representative or class action, 
the Illinois Supreme Court erroneously deprived each 
and all of the petitioners of the benefit of notice in the 
case now on review and a real opportunity to defend.

The fraud going to the jurisdiction of the court in the 
Burke v. Kleiman proceedings in the allegations as to 
the existence of the agreement and that there was a class 
to be represented (which fraud persisted throughout the 
proceedings both in the lower court and the State Appel­
late Court by means of the procurement of the decree by 
a false stipulation of facts and pleadings collusively pro­
duced), constitute an independent ground for petitioners’ 
claims of denial of due process of law. The petitioners 
rely principally upon each and all of the grounds urged, 
hut certainly the error of the Illinois Supreme Court is 
the more flagrant in view of the patently fraudulent 
character of the Burke v. Kleiman proceedings.

All of the other grounds argued in the brief of the 
Petitioners are argued with equal earnestness by the 
Petitioners.



3

The assertion in the jurisdictional statement in Re­
spondents’ brief that “ The application of the doctrine of 
res judicata is primarily a matter of the law of Illinois”  
and that “ The question here is limited to whether there 
is evidence to support the findings below that Burke v. 
Kleiman, supra, was a decision in a class or representa­
tive action, reached in good faith and not fraudulent or 
collusive”  is obviously erx-oneous. The issue here in­
volved is whether the State has denied to each and all 
of the Petitioners due process of law, whatever may be 
the settled law of the State of Illinois. Equal protection 
of the laws is not necessarily due process of law. Par­
tiality of the State Supreme Court in reversing its set­
tled law of 100 years is raised by the dissenting opinion 
in the case now on review. (R. 333, 334.)

STATEMENT.

Inaccuracies in the “ Statement”  in the brief of re­
spondent confuse the clarity of the issues presented by 
this review.

Essentially an alleged restrictive agreement containing 
an alleged mutual restrictive covenant is involved herein. 
This is not a case involving single and independent cove­
nants affecting single and independent parcels of prop­
erty; the covenants here are sought to be created by the 
agreement and the existence of each and all are dependent 
upon the existence of the agreement. (R. 3, 4.)

The respondents’ brief does not point out where any 
proof appears in the record that the owners of 95% of 
the frontage executed the agreement, nor any showing 
in the record of computation of frontage by the Wood- 
lawn Property Owners Association. On pages 11 and 12 
of their brief the respondents state that they relied on



4

their plea of res judicata in respect to the Burke v. Klei- 
man proceedings, and further, on their objections to peti­
tioners’ computations, the affidavit of Charles A. Churan, 
counsel for Woodlawn Property Owners Association (also 
principal counsel for the respondents in the State courts 
in the case here on review), as to the frontage signed, 
the affidavit of George W. Cook, a director of the afore­
said association as to computations, their amended com­
plaint which reduced the total frontage involved, and 
showing of additional signatures recorded after the re­
cording date required by the agreement. Record cita­
tions as to these items are given. In respect to these, 
procedurally, the Petitioners were denied the right of 
cross-examination, and by the sustaining of the Respond­
ents’ plea of res judicata the Petitioners were deprived 
of the benefit of the evidence adduced in their behalf 
on these very points in respect to which Respondents 
claim the record shows proof in their behalf. The fact 
that the Respondents now state that they relied upon 
the evidence in the record before the State Supreme 
Court to support the lower court’s decree, shows that the 
Petitioners were denied the right to defend as to matters 
opened for proof by the plaintiff-Respondents. And the 
decree with its finding that only 54% of the frontage 
signed the agreement, must be assumed to have been 
made in consideration of this showing in the record 
relied on by the Respondents as well as upon the evidence 
tendered by the Petitioners.

In respect to the cases stated by Respondents as 
involving the agreement sought to be enforced in this 
cause reference is made to the statement made by Peti­
tioner Burke in his answer herein (R. 30, 32 and 33) 
showing that the existence of the agreement was never 
in fact proved. Reference is also made to the decree 
in Cook v. Yondorf (R. 299) showing that the property



5

therein sought to be hound was not held to be hound. 
Reference is also made to the decree in Penoyer v. 
Cohn (R. 301), showing the decree to be upon the default 
of all of the defendants. The record shows that the 
decree obtained in 1936 was never enforced. (R. 190, 
301.)

The “ statement”  in respondents’ brief abounds in 
prejudicially cited items in the record and it is inap­
propriate under these circumstances to correct the unfair 
inferences made therefrom by the respondents. We are 
confident that in our original brief an accurate, fair and 
impartial statement of the case has been made for the 
review by this court. Indeed, we believe that the cita­
tions referred to by Respondent in most instances em­
phasize the fair character of the Petitioners’ statement 
of the case.

With regard to what the evidence tended to show in 
support of the trial Chancellor’s finding that the Burke v. 
Kleiman proceedings were fraudulent, we respectfully 
submit that this record shows not only that the Burke 
v. Kleiman proceedings were fraudulently instituted and 
maintained, as especially exhibited by the character of 
the pleadings therein (R. 218-246), 185, but the whole of 
the transactions in respect to the alleged agreement in­
volved in the case on review, have been fraudulent.



6

ARGUMENT.

I .

This Court will review the finding of facts by a State Court 
where a Federal right has been denied as the result of a 
finding shown by the record to be without evidence to sup­
port it; or where a conclusion of law as to a Federal right 
and a finding of fact are so intermingled as to make it 
necessary, in order to pass upon the Federal question, to 
analyze the facts.

The above principle of law has been well settled by 
this Court in the case of Kansas City Southern Railway 
Company v. C. H. Albers Commission Company, 223 
U. S. 573 at 591, in which case this court used the follow­
ing language:

“ While it is true that upon a writ of error to a 
State Court we cannot review its decision upon pure 
questions of fact, but only upon questions of law 
appearing upon the Federal right set up by the un­
successful party, it equally is true that we 'may 
examine the entire record, including the evidence, if 
properly incorporated therein, to determine whether 
what purports to be a finding upon questions of fact 
is so involved with and dependent upon such ques­
tions of law as to be in substance and fact a decision 
of the latter.”

This court has also held that it will examine the evi­
dence where a Federal right has been denied as the result 
of a finding of fact which it is contended there was no 
evidence whatsoever to support. See Cedar Rapids Gas 
Light Company v. Cedar Rapids, 223 U. S. 655; Creswill 
v. Grand Lodge Knights of Pythias, 225 U. S. 246 at 261;



7

Norris v. Alabama, 294 U. S. 587 at 590; Truax v. Cor­
rigan, 257 U. S. 321, 324-325.

This Court has likewise stated the principle of law 
applicable to the facts in this case at bar in the case of 
Davis v. Weclisler, 263 U. S. 22 at 24, in which the follow­
ing statement was made:

“ I f the Constitution and laws of the United States 
are to he enforced, this Court cannot accept as final 
the decision of the state tribunal as to what are the 
facts alleged to give rise to the right or to bar the 
assertion of it even upon legal grounds.”

In order to determine whether there has been a denial 
of a Federal right of the Petitioners to due process of law 
under the Fourteenth Amendment it would he necessary 
for this Court to examine all of the facts and circum­
stances and record, including pleadings in the case of 
Burke v. Kleiman, the decree of which was pleaded and 
sustained as res judicata against the Petitioners. Unless 
the Court did examine the facts of this case and the facts 
of Burke v. Kleimmt a grave injustice would result to the 
Petitioners because the denial of their Federal Consti­
tutional rights to due process of law under the Four­
teenth Amendment has been cloaked under the pretext 
of res judicata a procedural device of local law in Illi­
nois. The judgment and opinion of the Supreme Court 
of the State of Illinois sustained an alleged rule of State 
pleading or procedure, that is res judicata, arbitrarily 
and unreasonably to avoid a decision upon the question 
of a Federal right to due process of law under the Four­
teenth Amendment. This court has held that rules of 
State pleadings or procedure may not be used arbi­
trarily and unreasonably as a mere cloak or pretext to 
avoid or evade a decision upon a Federal Constitutional 
right. See Patterson v. State of Alabama, 294 U. S. 600



8

at 602; Davis v. Wechsler, 263 U. S. 22 at 24. In the last 
named case this Court used the following applicable 
language:

“ Whatever springes the State may set for those who 
are endeavoring to assert rights that the State con­
fers, the assertion of Federal rights, when plainly 
and reasonably made, is not to be defeated under the 
name of local practice.”

We wish to point out that the topical sentence in the re­
spondents’ Brief on page 15 to this effect “ the finding 
of fact by the Illinois Supreme Court that the only fraud 
in this record is on petitioners is supported by competent 
evidence and conclusive here”  is a wholly incorrect state­
ment of what is in the Illinois Supreme Court opinion. 
The Supreme Court of Illinois, in referring to the case 
of Burke v. Kleiman (R. 467-468) and to some of Burke’s 
alleged actions, made the following statement:

“ As far as the record shows, if any fraud was 
committed, it was by Burke after he left the associa­
tion. (R. 468.)”

The petitioners do not admit, but in fact vigorously deny 
that Burke committed any fraud whatsoever, hut on the 
contrary he ceased his efforts to enforce a restrictive 
agreement which he finally learned did not exist. Cer­
tainly a man commits no fraud when he learns the 
error of his ways in connection with a fraudulent non­
existent restrictive agreement and thereafter attempts to 
atone for his wrongdoing in having previously made 
efforts to enforce said nonexistent agreement. Burke 
attempted to correct the harm that he had done which is 
much more than can be said of the respondents in this 
case.

But even so, it is perfectly plain that the Supreme 
Court of Illinois made absolutely no statement whatever



9

that any fraud had been committed by the petitioners. 
The Supreme Court of Illinois made an unwarranted 
charge of fraud against James Joseph Burke. The rec­
ord in this case and the record in the case of Burke v. 
Kleiman proves conclusively that the Woodlawn Prop­
erty Owners Association caused to be filed a false com­
plaint alleging the existence of a restrictive agreement 
which had been executed by the owners of ninety-five 
per cent of the frontage when in truth and in fact it was 
known to Fred L. Heilman, Executive Secretary of said 
Association, for a period of three and one-half years 
prior to the filing of the case of Burke v. Kleiman that 
there was no  restrictive agreement whatsoever and that 
it had never come into force and effect according to its 
own terms. (R. 203-206.)

The affidavit of Fred L. Heilman was never at any 
time contradicted nor was there offered in opposition to 
it any evidence or affidavit by anyone Avhatsoever, and 
being uncontradicted and unrebutted, it stands as a con­
clusive fact. Moreover, the Chancellor found in his de­
cree that the alleged restrictive agreement was executed 
by less than the owners of ninety-five per cent of the 
frontage (R. 72 at 78), and besides the Chancellor in his 
oral decision made a definite finding of fact that the 
agreement was nonexistent and invalid according to its 
own terms. (R. 191 at 193.)

Under the law of the State of Illinois, all allegations 
of fact which are not fairly and certainly denied by some 
pleading or affidavit in opposition thereto, are deemed to 
be admitted under the provisions of the Civil Practice 
Act. The facts in the Answer of James Joseph Burke 
were never denied or rebutted.



1 0

I I .

Granting1 for the sake of the argument that private land- 
owners may contract for the control and disposition of 
their own property, yet it is true that the enforcement of 
such an agreement by the States’ Courts and judicial 
officers is a violation of the Fourteenth Amendment.

The petitioners have nowhere in their Brief contended 
that private landowners do not have the right to contract 
for the control and disposition of their own property by 
executing an agreement binding themselves not to sell 
or lease their property to colored people. Such an agree­
ment might possibly be valid among the property owners 
themselves and might carry with them whatever re­
straints and sanctions that might exist among themselves 
by the execution of such an agreement, and would be 
valuable to them in aid of any public opinion sought to 
be maintained among neighboring landowners. But it 
is the contention of these Petitioners that the enforcement 
of such a harsh, oppressive, and discriminatory restric­
tive agreement against Negroes solely on account of 
their race or color deprives Negroes of their equal Con­
stitutional rights to own and acquire property tvhere 
white persons are willing freely to convey such property 
to them. The petitioners do not contend that such a re­
strictive agreement among private landowners is invalid, 
but they contend that the enforcement by the States’ 
Courts and Judicial Officers in fact makes an agreement 
judicially when the legislature of the State is powerless 
to make one legislatively. See Buchanan v. Warley, 245 
U. S. 60; Chicago, Burlington & Quincy Railway Com­
pany v. Chicago, 166 U. S. 228.

What is involved in the case at bar is the right of a



11

Negro to own property freely conveyed by a white per­
son willing so to convey. There is no contention whatso­
ever that the Fourteenth Amendment gives Negroes the 
right to compel white persons to convey property to them. 
We do contend, however, that J. B. Crook, a white per­
son, being willing to convey to Hansberry, a Negro, had 
a perfect right to do so and that after the conveyance 
was made that the enforcement of an alleged restrictive 
agreement against the Hansberrys solely on account of 
their race or color was a denial of due process of law 
and the equal protection of the laws under the Fourteenth 
Amendment to the Federal Constitution. The petitioners 
likewise contend that Katz, if he chose to do so, had a 
right to sell his property to Negroes.

III.

The Illinois law upon the doctrine of res judicata is inap­
plicable where there is a denial of the Federal right to 
due process of law in violation of the Fourteenth Amend­
ment.

The Respondents have cited a long list of Illinois Su­
preme and Appellate Court cases all of which are inap­
plicable to the facts of the case at bar and are improp­
erly applied to the facts of this case. The respondents 
have wholly misapprehended the contentions of the Peti­
tioners in this court. We do not complain of any mere 
error of the Supreme Court of Illinois in applying the 
local law of the State of Illinois in respect to the doc­
trine of res judicata. We contend that the application 
of the doctrine of res judicata by the State Courts was a 
denial of due process of law and the equal protection of 
the laws because the sustaining of the plea of res judicata 
wrongfully denied the petitioners the benefit of notice



12

and a real opportunity to appear, to defend, and to be 
beard, and that the Federal Constitutional rights of the 
petitioners were thereby violated. See Postal Cable Tele­
graph Co. v. New Port, 247 U. S. 464; Windsor v. Mc­
Veigh, 93 IT. S. 274; Brinkerhoff-Faris Trust & Savings 
Co. v. Hill, 281 U. S. 673; Wabash Railway Co. v. Adel- 
bert College, 208 U. S. 38.

Although it is true that this Court ordinarily recognizes 
that res judicata is a question of local law, nevertheless 
this Court has always examined the particular facts and 
circumstances of each case in which the plea of res judi­
cata has been sustained, for the purpose of determining 
whether the litigant has been denied the benefit of notice, 
and a real opportunity to appear, to defend and to be 
heard. See Ward v. The Board of County Commission­
ers of Love County, Olda., 253 IT. S. 17, 22, 23; Davis v. 
Wechsler, 263 U. S. 22, 24; Postal Cable Telegraph Co. v. 
New Port, 247 U. S. 464 at 475-476; Brinkerhoff-Faris 
Trust and Savings Co. v. Hill, 281 U. S. 673.

In the case of Kersh Lake Drainage County Commis­
sioners v. Thompson, 309 U. S. 485, cited by respondents 
in their brief, this Court refused to apply the doctrine 
of res judicata against landowners each of whom had 
various personal defenses to the levy and extension of 
certain drainage taxes, and held that each landowner had 
a right to defend as to the particular amount of taxes 
owed by him, and further that each landowner had per­
sonal defenses peculiar to such landowners and that such 
personal and peculiar defenses could not be foreclosed 
or precluded by the application of the doctrine of res 
judicata, which if applied would deny to such landowners 
the right and benefit of notice and a real opportunity 
to appear, to defend, and to be heard.

In the case at bar each of the alleged parties signatory



13

to tlie alleged but nonexistent agreement, bad a right to 
set up the personal defenses of lack of due execution 
of the agreement, alteration of the instrument, forgery, 
change in the character of the neighborhood, and the 
signing of said instrument upon the express condition 
that the signature of such signer would he a nullity 
if the owners of ninety-five per cent of the frontage 
of said area did not in fact execute and deliver said 
instrument.

The wrongful application of the doctrine of res judicata 
denied the petitioners their Federal constitutional rights 
because the petitioners were thereby foreclosed, barred, 
and prevented from setting up and successfully maintain­
ing (as shown by the record of this case and the case of 
Burke v. Kleiman) all of the above mentioned defenses 
which were personal and peculiar to each of them.

The fact that the Supreme Court of Illinois ignored 
the Federal Constitutional question raised by petitioners 
does not foreclose such contentions in this Court. In the 
case of Ward v. The Board of County Commissioners of 
Love County, Okla., 253 U. S. 17, 22, this Court made 
the following statement:

“ It therefore is within our province to inquire 
not only whether the (Federal) right was denied in 
express terms, but also, whether it was denied in sub­
stance and effect, as by putting forward non-federal 
grounds of decision that were without any fair or 
substantial support. Of course, if non-federal 
grounds plainly untenable, may be thus put forward 
successfully, our power to review may easily be 
avoided. ’ ’

The sustaining of the plea of res judicata against peti­
tioners by the Supreme Court of Illinois was a mere 
cloak and pretext put forward to avoid a decision upon 
the question of the denial to Petitioners of the Federal



14

Constitutional right to due process of law under the Four­
teenth Amendment. See Davis v. Wechsler, 263 U. S. 
22, 24; Ward v. The Board of County Commissioners of 
Love County, Okla., 253 U. S. 17-22; Patterson v. The 
State of Alabama, 294 U. S. 600, 602.

IV.

The State Court decree does offend the Fourteenth 
Amendment.

For the reasons set out in Petitioners’ brief, the de­
cree of the Superior Court of Cook County affirmed by 
the Supreme Court of Illinois, did result in a deprivation 
of petitioners’ rights and property in violation of the 
Fourteenth Amendment to the Federal Constitution. The 
Respondents attempt to limit the application of the Four­
teenth Amendment unduly by a purposeful disregard of 
the provision in the Amendment extending the equal pro­
tection of the laws to all citizens. The instant cause is 
not one where the situation referred to by Respondents 
exists. Under Point 4 in their Brief Respondents fallaci­
ously apply the reasoning of “ Corrigan v. Buckley,”  299 
I  ed. 899, by stating that the constitutional privilege of 
a Negro to own property does not carry with it the con­
stitutional right to compel the sale and conveyance of any 
particular property. The respondents, in the use of the 
language of that case, support the contention of the Peti­
tioners, that there is a constitutional privilege in the 
Negro as a citizen of the United States to own property 
and that in fact property ownership is one of the essen­
tial attiibutes of citizenship. Surely the constitutional 
piivilege carries Avith it the right to freedom from arbi­
trary and wilful seizure of property by duly constituted 
state agencies.



15

The Respondents further, in Point IV, in their brief 
have apparently undertaken the responsibility of rewrit­
ing some of the basic holdings of constitutional law. They 
refer to the property of the Petitioners Hansberry and 
state blandly that this is the only property involved and 
that therefore, the Petitioners Hansberry are the only 
ones that have a basis for asserting the protection of the 
Fourteenth Amendment. The respondents thus blow hot 
and cold. They would on the one hand disregard the 
rights of the Negro as a citizen, which were asserted 
by the Fourteenth Amendment, and on the other disre­
gard the extension of the Fourteenth Amendment to the 
protection of other than real property rights, asserted 
in a long line of decisions in this Court.

There is property referred to in the record for the 
application of the due process clause of the Fourteenth 
Amendment. The Petitioner Katz was denied the effec­
tive use of his property by the state court decree. The 
petitioner, Supreme Liberty Life Insurance Company, was 
denied its right to do business and a valid mortgage lien 
was impaired in a manner inconsistent with the instru­
ment sued on. The Petitioners Hansberry were, of course, 
despoiled of their property, which was arbitrarily taken 
from them by the agents and officers of the state court. 
Respondents err seriously when they confine property 
rights to those in real property as they apparently do 
in their brief.

Respondents cite the case of “ Enterprise Irrigation 
Dist. v. Farmers Mutual Canal Company,”  243 U. S. 157 
at 166, in support of the general proposition that the 
due process clause cannot in and of itself take up the 
laws of the several states and make a question pertain­
ing to them a constitutional question. This the Petition­
ers have not sought to do. In the case cited, which was



1 6

an action to determine the relative rights of parties to 
divert water, this court held that no jurisdiction existed 
to review a matter when a state court judgment is based 
on two grounds, one of which involves a Federal question 
and the other not. The court, however, expressly stated 
that where the non-Federal ground is so interwoven with 
the Federal question, court will take jurisdiction of the 
matter. In the case cited, the chief contention was quite 
apparently the misapplication of the state law. In the 
instant case the respondents clearly set out in their brief 
the Federal ground based on a deprivation of due process 
caused by the wrongful application of the doctrine of res 
judicata and the arbitrary and unlawful seizure of prop­
erty by state agents.

Kespondents make a serious misstatement when they 
state in their brief that the petitioners are at liberty to 
acquire and exercise all of the rights and ownership of 
real estate in Chicago, except the small area, which was 
the subject matter of the action below. A  reference to 
Petitioners’ brief will again impress the court with the 
serious social situation resulting where so many Negro 
citizens have been compressed into a small area, with a 
portion of that area suffering from a purported restric­
tive agreement.

In passing, it should be noted that the principle in the 
case of Colgate v. Harvey, 296 U. S. 404, 472, was not 
overruled by the case of Madden v. Kentucky, 309 U. S. 
83 at 93. The Madden v. Kentucky decision stated that 
the right to deposit money in banks is not a privilege 
of National citizenship. The decision did not reject the 
idea of a National citizenship for which purpose the 
Colgate v. Harvey case was cited in Petitioners’ brief.



17

V.

Specific performance in the instant case did offend, the 
Fourteenth Amendment.

The decree of the state court required the Petitioners 
Hansberry to convey their property without compensa­
tion. To state otherwise is to disregard the statement 
in the decree entered by the trial chancellor. The decree, 
in ordering the conveyance by the Master in Chancery 
in the Superior Court, did not perform the function of 
a writ of assistance as claimed by the respondents. Here, 
in an action where the basic agreement expressly pro­
vided against forfeiture, persons were stripped and di­
vested of legal title as distinguished from possession after 
a finding by a court of competent jurisdiction upon a 
full hearing of the merits, which would he required for 
the issuance of a writ of assistance.

The doctrine in Svelina v. Sarvans, 341 111. 236, cited 
by Respondents, is clearly inapplicable in the instant cause. 
In that action a conveyance was made for the purpose 
of defrauding and cheating creditors. Under such circum­
stances any court would be justified in refusing the return 
of the consideration. In the instant cause the Petitioners 
Hansberry, consistent with their rights as citizens of the 
United States, paid a valuable consideration for title with 
no thought of defrauding or cheating anyone. There were 
no restrictions contained in the deed. Surely there is 
no justification for bringing this set of circumstances 
under the doctrine of the case cited.

The respondents should not further confuse the issue 
by referring to cases where the restriction appears in the 
deed of conveyance. It should again be noted that the 
restrictive agreement itself expressly provided against 
forfeiture.



1 8

VI.

The record does not support the injunction against the 
Petitioner Katz.

Petitioners refer again to their brief in answer to the 
statement made in Point VI of Respondents’ brief. The 
decree could not oblige Katz to abide by liis oivn agree­
ment when all of the facts in the record show that he 
never intended to enter into the agreement and certainly 
never made any specific threats such as would justify the 
injunction.

VII.

The insurance company is exempt as a mortgagee.

Since the purported restrictive agreement clearly ex­
empts mortgagees from the operation of the agreement, 
it is difficult to see how the decree can be justified as 
against the Insurance Company and how further the 
doctrine of res judicata- could apply to it since it was not 
in any sense a party or privy to the case of Burke v. 
Kleinian. The Petitioners state a bald unsupported con­
clusion when they state that the agreement protects the 
mortgage by restoring the property to merchantable 
status when in fact it does the opposite.

Respectfully submitted,

E a r l  B. D ic k e r s o n ,
T r u m a n  K. G ib s o n , J r .,

C. F r a n c is  S t r a d fo r d ,
L o r in g  B. M o ore ,
I r v in  C. M o l l is o n ,

Attorneys for Petitioners.







2nd C iv il  N o .

In the District Court of Appeal
SECOND A PPE LLA TE  D ISTRICT

State of California
CHRISTINE BURKHARDT,

Plaintiff and Respondent,
vs.

LEE LOFTON. JOHN DOE. JOHN DOE ONE, TOHN 
DOE TWO. JENNIE P. LOFTON, (sued as JANE DOE 
ONE), and JANE DOE TWO, Defendants,

LEE LOFTON and JENNIE P LOFTON,
_ _ _ _ _ _  Appellants.

DOLE M. BURKMAN and GENEVA E. BURKMAN-, BER­
THA COLLEY. MARY ELIZA BETH CRN ME, WIL­
LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE
A. COIN and ALICE MARIE COIN. CLARENCE E. 
GRAY, LESLIE A. JONES .and MILDRED J. TONES, 
GERTRUDE KADOL'S, FRED KROEKER and ETHEL 
MAE KROEKER VERNON D. MAXSON AND INEZ
B. MAXSON, JOSE MENDOZA and CONSUELO M.
MENDOZA, ARNOLD THOMAS and PEARL THOMAS, 
NICK A. VACCARIELLO and IOSEPHINE M. VACCA- 
RIELLO, ALBERT HAMILTON VINCENT and VF.RDA 
LUELA VINCENT, Plaintiffs and Respondents,

MAE LIDDY. VINCENT TENCHAVEZ, BERTHA TEN- 
CHAVEZ, SIMON D. ROPARIO, LEE S. LOFTON and 
JENNIE P. LOFTON, Defendants,

LEE S. LOFTON and JENNIE P. LOFTON,
Appellants.

DOLE M. BURKMAN and GENEVA E. 1IURKM \N, BER­
THA COLLEY, MARY ELIZABETH CRUME, WIL­
LIAM T. DAVIS and BEATRICE DAVIS. CLARENCE
A. GOIN and ALICE MARIE. COIN, CLARENCE E 
GRAY, LESLIE A. JONES and MTLDRED J. TONES 
GERTRUDE KADOUS, FRED KROEKER and ETHEL 
MAE KROEKER, VERNON D, MAXSON and INEZ
B. MAXSON, JOSE MENDOZA and CONSUELO M. 
MENDOZA, ARNOLD THOMAS and PEARL THOMAS 
NICK A. VACCARIELLO and JOSEPHINE M. VAC- 
CARIELLO. ALBERT HAMILTON VINCENT and 
VERDA LUELA VINCENT,

Plaintiffs and Respondents, 
vs.

HENRY LAWS, ANNA LAWS and PAULETTA LAWS 
(sued as ONE DOE),

Defendants and Appellants.
APPEAL FROM SUPERIOR COURT OF LOS ANGELES COUNTY 

HON. ROY V. RHODES, JUDGE.

A P P E L L A N T S ’ O P E N IN G  BRIEF.

T h o m a s  L . G r i f f i t h , Jr .,
L o r en  M il l e r ,

1105 East Vernon Avenue, Los Angeles,





I

V.





Statement of Questions Involved.
I. Was the evidence sufficient to support a 

judgment enjoining use and occupancy o f two 
parcels of land by Negroes where the parcels are 
located on a border line street still sparsely set­
tled 16 years after the opening of the tract and 
which front on a subdivision occupied almost 
exclusively by Negroes, and was the evidence 
sufficient to support a finding that there has been 
no change in the racial character of the neighbor­
hood sufficient to stay the hand of equity, where 
the evidence shows certain changes in bordering 
tracts and that the lots so used and occupied had 
little or no value to Caucasians, and where plain­
tiffs failed to show either damage by non- 
Caucasian occupancy or benefit by enforcement 
of the covenant?

II. Will a restriction against use and occu­
pancy of property by persons not of the Cau­
casian race be enforced where no time limit is 
specified? Is a dominant tenement created where 
the grantor reserves the right to modify the re­
strictions at his discretion and where the trustee 
holds legal title to sell and subdivide and closes 
the trust and conveys the unsold lots in the tract 
to the settlors, free of any restrictions, and the 
settlors thereafter convey one of the lots to an 
appellant free of any restrictions?

III. Does the evidence support a finding that 
plaintiffs were not guilty of laches and waiver?

IV. Does judicial decree enforcing a restrict­
ing racial covenant offend the equal protection 
clause of the Fourteenth Amendment o f the 
United States Constitution?





TOPICAL INDEX.

PAGE
Statement of questions involved.............................. Preface

Statement of the case......................................................... 2

Specifications of error....................................................... 12

J  Argument ...........................................................................  15

There can be no equitable servitude where no domi­
nant tenement created'..............................................  15

Equity will not enjoin use and occupancy merely
to harass a lot owner................................................. 20

Changes in the character of a neighborhood will
stay enforcement of a restrictive covenant...........  24

Laches and waiver will bar the right to enforce a
restrictive agreement ................................................. 31

A  restriction of use and occupancy unlimited as to
time is void.................................................................  36

All necessary parties to a complete determination 
of an action should be made parties to the action 38 

An injunction should not issue to restrain the al­
leged violation of restrictions in a tract where the 
restrictions have been modified and the original 
grantees took the lots with notice that the grantor
reserved the right to modify the restrictions.......  41

(1 ) A  subsequent grant contrary to restrictions 
by a grantor with power to modify oper­
ates as a revocation of the original instru­
ment .....................................................................  41

(2 ) An equitable servitude is not created where 
the understanding of the parties is left to 
mere conjecture ................................................  45



A judicial decree of a state court enforcing, 
against members of the Negro race, restrictive 
residence covenants, offends the equal protection 
clause of the 'Fourteenth Amendment to the 
United States and Article One, Sections One 
and Twenty-one of the Constitution of the State 
of California ......................................................  53

(1 ) Judicial action constitutes “ State” action 
within the meaning of the Fourteenth 
Amendment ....................................................... 53
(a) The broadening, scope of the Fourteenth

Amendment as to what constitutes state 
action ...........................................................  54

(b ) The broadening protection of Negroes
from discrimination because of race or 
color .............................................................  55

(c ) The growing judicial emphasis upon
personal rights as distinguished from 
property or contract rights......................  60

Enforcement of restrictive covenants against the 
Negro race, because of race or color, is against 
the present public policy of the nation, and of 
this state .....................................................................  64
(a) National unity urged in the National De­

fense Program ................................................... 64

(b ) Restrictions because of race, creed or color
are inconsistent with the public policy of 
this state .............................................................  65

(c ) The right to acquire and possess property
is guaranteed by our California Constitution 68

Conclusion ...........................................................................  69

ii.

PAGE



111.

TABLE OF A U TH O RITIES CITED.

Cases. page

Allgeyer v. Louisiana, 165 U. S. 578............................ 62

Ambassador Petroleum Co. v. Superior Court, 208
Cal. 667 ...........................................................................  39

Bank of America v. Superior Court, 16 Cal. (2d)
516...................................................................................... 39

Bard v. Kent, 37 Cal. App. (2d) 160............................  42

Berryman v. Hotel Savoy Co., 160 Cal. 559............17, 47
Boye v. Boerner, 12 Cal. App. (2d) 186...................... 43

Y

Bresee v. Dunn, 178 Cal. 96............................................  17

Bridges v. California, 86 L. Ed. (Adv. Op.) 179.... 54
Brown v. Wrightman, 5 Cal. App. 391........................ 48

Buchanan v. Worley, 245 U. S. 60..........................56, 58

Chapman v. Bank of California, 97 Cal. 155.... ...........  31

Cornish v. O ’Donoghue, 30 Fed. 298.............................  58
Corrigan v. Buckley, 271 U. S. 323................................  57

Downs v. Kroeger, 200 Cal. 743....................................
...........................................................21, 22, 23, 24, 25, 29

Feinberg v. One Doe Co., 14 Cal. (2d) 24.................. 24

Firth v. Marovich, 160 Cal. 257......................................  17

Foster v. Stewart, 134 Cal. App. 482........................36, 37

Friesen v. City of Glendale, 209 Cal. 524...................... 25

Gandolfo v. Hartman, 49 Fed. 181.............................  59

Grady v. Garland, 89 Fed. (2d) 817..............................  58

Hague v. C. I. O., 307 U. S. 496....................................  54

Hamilton v. Regents, 293 U. S. 245..............................  55

Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal. App. 462 48 

Hansberry v. Lee, 311 U. S. 32........... 24, 34, 35, 39, 57



IV.

Hartman Ranch Co. v. Associated Oil Co., 10 Cal.
(2d) 232 .........................................................................  38

Hess v. Country Club Park, 213 Cal. 613.................... 25
Home Building and Loan Association v. Blaisdell, 290

U. S. 398.........................................................................  63
Hundley v. Gorewitz, .....  Fed. Rep.................. 25, 26, 30

Hurd v. Albert, 214 Cal. 14............................................  25
Kennedy v. Lee, 147 Cal. 596........................................  42
Kern v. Commissioners of City of Newton, 147 Kan.

471 .................................................................................... 67
Koehler v. Rowland, 275 Mo. 573............................25, 27

Kuhn v. Saum, 316 Mo. 805............................................  19

Lake v. Dow, 207 Cal. 290............................... ...............  38
Latteau v. Ellis, 122 Cal. App. 584............................25, 72

Lorenzen, Ex parte, 128 Cal. 431..................................  69

Los Angeles and Arizona Land Co. v. Marr, 187
Cal. 126 ....................................................................35, 48

Los Angeles Athletic Club v. Long Beach, 128 Cal.
App. 427 .........................................................................  32

Los Angeles Investment Co. v. Garry, 180 Cal. 680 
...................................................................................... 57, 58

Lovell v. Griffin, 303 U. S. 444......................................  54

Main St. etc. Railroad Co. v. Los Angeles Traction
Co., 129 Cal. 301...........................................................  42

Martin v. Holm, 197 Cal. 733........................................  47

McBride v. Freeman, 191 Cal. 158............................. 44, 47

Minersville School District v. Gobitis, 310 U. S. 586 60

Missouri ex rel. Gaines v. Canada, 305 U. S. 337.......  55

Mitchell v. United States, 313 U. S. 80........................ 55

Mooney v. Holohan, 294 U. S. 103................................ 53

PAGE



V.

Nixon v. Herndon, 273 U. S. 536..................................  55
Norris v. Alabama, 294 U. S. 594..................................  55

O ’Connor v. Irvine, 74 Cal. 435......................................  38
One and Three South William St. Bldg. Corporation 

v. Gardens Corporation, 232 App. Div. Reports
(N. Y .) 59.....................................................................  19

Palko v. Connecticut, 302 U. S. 219.............................. 61
Pierre v. Lousiana, 306 U. S. 354..................................  55

Piper v. Big Pine School District, 193 Cal. 664.........  67

Russell v. Wallace, 30 Fed. (2d) 981............................ 58
Sacramento O. etc. Home v. Chambers, 25 Cal. App.

536...................................................................................... 67
Schneider v. State, 308 U. S. 147..................................  54

Simpson v. City of Los Angeles, 4 Cal. (2d) 60,
27 Cal. App. (2d) 293................................................... 69

Smith v. Texas, 311 U. S. 129........................................  55

Stone v. Board of Directors of Pasadena, 47 Cal.
App. (2d) 851.................................................................  67

Taylor v. Georgia, 86 L. Ed. (Adv. Op.) 371.............  55
Tenant v. John Tenant Memorial Home, 167 Cal.

575 .................................................................................... 46
Title Guaranty v. Henry, 208 Cal. 185.......................... 38

Truax v. Corrigan, 257 U. S. 312..................................  59

Tucker v. Beneke, 180 Cal. 588......................................  32

Twohey v. Realty Syndicate Co., 4 Cal. (2d) 397.......  42

Tynan v. Kerns, 119 Cal. 447........................................  36

Vesper v. Forest Lawn Cemetery Assn., 20 Cal. App.
(2d) 157............................................................................ 23

Wagoner v. Hannah, 38 Cal. I l l ...................................... 15

Walker v. Haslett, 44 Cal. App. 394..............................  23

PAGE



VI.

Waltz, In re, 197 Cal. 263..............................................  43
Ward v. Flood, 48 Cal. 36..............................................  67
Wedum-Aldahl Co. v. Miller, 18 Cal. App. (2d) 745 48
Werner v. Graham, 181 Cal. 174................. 15, 17, 44, 47
West Coast Hotel Co. v. Parrish, 300 U. S. 379.......  62
Wing v. Forest Lawn Cemetery Assn., 15 Cal. (2d)

472.........................................................................15, 18, 49
Yick W o v. Hopkins, 118 U. S. 356............................ 59

PAGE

M is c e l l a n e o u s .

57 American Law Reports 336...................- .................  23
20 California Jurisprudence, 575, 576.........................  39
26 Corpus Juris Secundum 515, 516...............................  17
26 Corpus Juris Secundum 574...............................   22
26 Corpus Juris Secundum 774, 775..........   23
Executive Order No. 8802, dated June 25, 1941..........  64
Wendell Willkie’s address in Los Angeles on July 20,

1942.................................................................................... 65
Wendell Willkie, One W orld..........................................  71

S t a t u t e s .

California Constitution, Art. I, Sec. 1............................ 68
California Constitution, Art. I, Sec. 21.......................... 68
Civil Code, Sec. 51.............................................................  66
Civil Code, Sec. 52..............................   66
Civil Code, Sec. 1229..........................................................  46
Civil Code, Sec. 1698..................................................   42
Code of Civil Procedure, Sec. 389........................' ......... 39
Code of Civil Procedure, Sec. 711........................... 36, 37
Code of Civil Procedure, Sec. 715 ........................... 36, 37
Fifth Amendment to the United States Constitution.... 59 
Fourteenth Amendment to the United States Con­

stitution ............................................................................ 59



In the District Court of Appeal
SECOND APPELLA TE  DISTRICT

State of California
CHRISTINE BURKHARDT,

Plaintiff and Respondent, 
vs.

LEE LOFTON, JOHN DOE, JOHN DOE ONE, JOHN 
DOE TWO, JENNIE P. LOFTON, (sued as JANE DOE 
ONE), and JANE DOE TWO,

Defendants,
LEE LOFTON and JENNIE P. LOFTON,

Appellants.
DOLE M. BURKMAN and GENEVA E. BURKMAN, BER­

THA COLLEY, MARY ELIZABETH CRUME, WIL­
LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE
A. GOIN and ALICE MARIE GOIN, CLARENCE E. 
GRAY, LESLIE A. JONES and MILDRED J. JONES, 
GERTRUDE KADOUS, FRED KROEKER and ETHEL 
MAE KROEKER VERNON D. MAXSON AND INEZ
B. MAXSON, JOSE MENDOZA and CONSUELO M. 
MENDOZA, ARNOLD THOMAS and PEARL THOMAS, 
NICK A. VACCARIELLO and JOSEPHINE M. VACCA- 
RIELLO, ALBERT HAMILTON VINCENT and VERDA 
LUELA VINCENT,

Plaintiffs and Respondents, 
vs.

MAE LIDDY, VINCENT TENCHAVEZ, BERTHA TEN- 
CHAVEZ, SIMON D. ROPARIO, LEE S. LOFTON and 
JENNIE P. LOFTON,

Defendants,
LEE S. LOFTON and JENNIE P. LOFTON,

________  Appellants.
DOLE M. BURKMAN and GENEVA E. BURKMAN, BER­

THA COLLEY, MARY ELIZABETH CRUME, WIL­
LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE
A. GOIN and ALICE MARIE GOIN, CLARENCE E. 
GRAY, LESLIE A. JONES and MILDRED [. JONES, 
GERTRUDE KADOUS, FRED KROEKER and ETHEL 
MAE KROEKER, VERNON D, MAXSON and INEZ
B. MAXSON, JOSE MENDOZA and CONSUELO M. 
MENDOZA, ARNOLD THOMAS and PEARL THOMAS, 
NICK A. VACCARIELLO and JOSEPHINE M. VAC­
CARIELLO, ALBERT HAMILTON VINCENT and 
VERDA LUELA VINCENT,

Plaintiffs and Respondents,

HENRY LAWS, ANNA LAWS and PAULETTA LAWS 
(sued as ONE DOE),

Defendants and Appellants.

APPELLAN TS’ OPENING BRIEF.



— 2 —

Statement of the Case.

This is an appeal from a judgment entered in 
three cases, consolidated for the trial and for 
the purpose of appeal, enjoining defendants, Lee 
Lofton and Jennie P. Lofton, from using, or 
occupying any portion of Lot 498 or any other 
lot in Tract 7421 as recorded in Book 81, pages 
64, 65, 66, of Maps in the office of the County 
Recorder of Los Angeles County, and enjoining 
defendants, Henry Laws, Anna Laws, and Paul- 
etta Laws, from using or occupying any portion 
of Lot 500 or any other lot in the same tract. 
All defendants are Negroes. A  perpetual in­
junction was granted on the ground that use or 
occupancy of the lots would be violative of cer­
tain “ Building Restrictions of Tract 7421 known 
as New Goodyear Tract Unit No. 2” recorded in 
Book 3027, pages 35, 36, of Official Records of 
Los Angeles County, the cogent parts of which 
follow :

“ That said premises shall not be leased, sold, 
or conveyed to or used or occupied by any 
person not of the Caucasion race.

“ The Bank of Italy hereby reserves the 
right to modify at its discretion the provi­
sions, conditions, restrictions and covenants 
herein contained.”

Tract 7421 is located in the southeasterly sec­
tion of the City of Los Angeles and is bounded 
on the west by Central avenue, on the east by



— 3—

Zamora avenue, on the south by East 92nd street 
and on the north by Manchester avenue [Plain­
tiff’s Exhibit 6] and was subdivided in 1923 
[Plaintiff’s Exhibit 2).

Central Gardens Tract adjoins the easterly half 
of Tract 7421 on its southern border. [Rep. Tr. 
p. 323, lines 8 to 11.] Tract 7593 adjoins the 
westerly half of Tract 7421 on its southern bor­
der. [Rep. Tr. p. 322, lines 1 to 4.] The Pardee 
Tract adjoins a portion of Tract 7421 on the 
east. [Rep. Tr. p. 327, lines 8 to 11.] Also 
lying east of Tract 7421 is the Prince Tract. 
[Rep. Tr. p. 327, lines 18 to 21.]

Defendants Loftons’ post office address is 1219 
East 92nd street, Los Angeles [Rep. Tr. p. 223, 
line 19] ; defendant Laws’ post office address is 
1235 East 92nd street, Los Angeles. [Rep. Tr. 
p. 223, line 22.] Defendants Loftons purchased 
their parcel and began occupancy early in Oc­
tober, 1939 [Rep. Tr. p. 222, lines 20, 22], and 
have resided there continuously since. [Rep. Tr. 
p. 223, lines 6 to 8.] Defendants Laws pur­
chased their parcel on contract in November, 
1935 [Rep. Tr. p. 536, line 19], and recorded a 
deed to it on August 29, 1940 (Defendant’s Ex­
hibit A ) ; they began building a home on the par­
cel in June, 1941 [Rep. Tr. p. 540, lines 8 to 10], 
and began occupancy of the home constructed 
by Federal Housing Authority funds about 
March 17, 1942. [Rep. Tr. p. 227, lines 22,



4

23.] Prior to the construction o f the home de­
fendant, Henry Laws, had made certain use of 
that parcel [Rep. Tr. p. 564, lines 19, 20; p. 565, 
line 3; p. 566, line 6; p. 567, line 4; p. 567, line 
8], which had extended over a period of approxi­
mately seven years. [Rep. Tr. p. 565, line 3.]

There are 21 lots on north side o f East 92nd 
street, included in Tract 7421 (Plaintiff’s Exhibit 
6 ), and at the time the defendants Loftons began 
occupancy o f Lot 500 only four o f those lots 
zverc occupied as dzvellings. [Rep. Tr. p. 656, 
line 24, to p. 657, line 6.] The only other 
structure o f any kind on the north side of 
92nd street, included in Tract 7421, was a busi­
ness structure near Central avenue. [Rep. Tr. p. 
660, lines 14, 15.] The south side o f East 92nd 
street between Hooper avenue and Zamora street 
is included in the Central Avenue Gardens Tract 
occupied almost exclusively by Negroes. [Rep. 
Tr. p. 518, lines 17 to 20.] The house facing 
Lot 500 is occupied by Negroes. [Rep. Tr. p. 
660, line 23, to p. 661, line 2.] All houses 
on the south side o f East 92nd street be­
tween Central avenue and Zamora avenue, the 
area fronting on Tract 7421, are used and occu­
pied by non-Caucasians. [Rep. Tr. p. 514, lines 
10 to 14.]

Defendants called three expert witnesses, all 
real estate brokers, zvho testified that Lots 498 
and 500, Tract 7421, had “ no sale value to Cau-



— 5-

casian races”  [Rep. Tr. p. 489, line 16], bat 
“ could be sold to colored people”  [Rep. Tr. p. 
490, line 2], explaining that there “ are so many 
colored people from Compton avenue over to 
Central that white people wouldn’ t buy in there. 
W e have tried it; they won’ t buy”  [Rep. Tr. p. 
490, lines 12 to 14]; that “ A person o f the Cau­
casian race zvould not buy that property”  [Rep. 
Tr. p. 685, lines 6, 7 ] ; that these parcels “ would 
not have much sale value to people o f the Cau­
casian race”  [Rep. Tr. p. 557, line 9] ; that the 
property woidd have “ limited, very limited, if 
any”  sale value to persons o f the Caucasion race. 
[Rep. Tr. p. 554, line 9.] No evidence o f any 
kind was adduced to the contrary.

All evidence as to changed conditions of racial 
occupancy referred to conditions outside of 
Tract 7421 and in adjoining areas. There were 
few Negroes in the entire surrounding area in 
1923. [Rep. Tr. p. 484, lines 10 to 13.] The 
Central Avenue Gardens Tract, one o f the south­
erly adjoining tracts, was developed roughly 
simultaneously with Tract 7421 and the number 
of Negroes living in that tract has steadily in­
creased over the years. [Rep. Tr. p. 511, lines 
21 to 25.] The number of Negroes in the Par­
dee Tract, adjoining a portion of Tract 7421 to 
the east, and subdivided long before subdivision 
of Tract 7421, has increased steadily since 1923. 
[Rep. Tr. p. 627, lines 17 to 20; p. 628, line 9;



p. 630, lines 10 to 12; p. 727, lines 3 to 5; p. 364, 
lines 5 to 16.] The change in the Pardee Tract 
has been from one of a majority o f whites to a 
majority of Negroes within the past five or seven 
years. [Rep. Tr. p. 364, lines 5 to 16.] The 
increase in the number o f Negroes living in 
tracts adjacent to Tract 7421 has brought a cor­
responding proportionate increase in the number 
of Negroes using the public streets in and about 
Tract 7421. [Rep. Tr. p. 574, line 10; p. 528, 
line 14; p. 529, line 8; p. 601, lines 13, 14; p. 
612, line 23 to 26; p. 501, lines 18 to 23.] The 
number of Negro children at the Firth Boulevard 
School located approximately a mile south of 
Tract 7421 had increased materially in the past 
ten years [Rep. Tr. p. 521, lines 6 to 25], and 
that school now employs one Negro teacher. 
[Rep. Tr. p. 525, lines 18 to 23.] A  market lo­
cated in the center of Tract 7421 attracts 
Negro customers [Rep. Tr. p. 764, line 23], and 
of that market’s sixty or so steady customers 
some seven or eight are Negroes [Rep. Tr. p. 
764, line 23], and there are additional Negro cus­
tomers who are more casual customers. [Rep. 
Tr. p. 766, line 15.] A  bus line routed through 
Tract 7421 carries more Negro passengers than 
white [Rep. Tr. p. 750, lines 4 to 7], and the 
number o f Negro bus passengers is on the in­
crease. [Rep. Tr. p. 751, lines 13 to 15.] 
There were no changes in Prince Tract, which 
remains an area of white occupancy.



7 —

Plaintiffs all knew o f defendants Loftons’ oc­
cupancy o f Lot 498 at the time they began that 
occupancy [Rep. Tr. p. 634, lines 2 to 7] in Oc­
tober, 1939. [Rep. Tr. p. 223, lines 6 to 8.] 
First suit was filed against defendants Loftons 
by plaintiff Burkliardt on June 24, 1940. [Clk. 
Tr. p. 10, lines 19, 20.] Second suit was filed 
by other plaintiffs against defendants Loftons on 
August 7, 1941. [Clk. Tr. p. 42, lines 19, 20.] 
Meanwhile defendants Loftons had made certain 
improvements to their property in the interim 
before the first suit was filed. [Rep. Tr. p. 583, 
line 14; p. 584, lines 14, 20, 24; p. 585, lines 18, 
22, 23, 25; p. 586, lines 3, 5, 22.]

In explanation o f the delay in filing suit 
against defendants Loftons plaintiffs were per­
mitted, over objection, to introduce into evidence 
Plaintiff’s Exhibit 45, a letter from an attorney, 
Paul Briskin, to Bank of America in which de­
mand was made on the bank to enforce the re­
strictive covenant, and another letter, Plaintiff’s 
Exhibit 48, from a Mrs. Ada Mclver, not a 
party plaintiff in any of the actions, to Bank of 
America also demanding enforcement of the 
racial restrictions. Replies to each of these let­
ters were also admitted into evidence and are 
marked, respectively, Plaintiff’s Exhibits 47 and 
49. Plaintiffs then “ organized a meeting” [Rep. 
Tr. p. 798, lines 8 to 10] and that meeting was 
held about August 23rd, 1939 [Rep. Tr. p. 798,



line 12], and the attorney Briskin was employed 
to represent tract owners. [Rep. Tr. p. 806, 
lines 12 to 16.] He continued to represent that 
group until after the disposition of Case No. 
444,606, not involved in this appeal, and directed 
against a certain other alleged Filipino violator 
o f the covenant not before this court. [Rep. Tr. 
p. 806, lines 23 to 26.] Mr. Briskin was attorney 
for the entire group. [Rep. Tr. p. 807, lines 8 
to 11.] From 75 to 100 persons were members 
of that group [Rep. Tr. p. 808, lines 1 to 3] 
which collected funds to employ first the attorney 
Briskin and later an attorney Nathan Snyder 
[Rep. Tr. p. 808, lines 19, 20] and have borne all 
expenses of litigation. [Rep. Tr. p. 812, lines 12 
to 14.] The attorney Snyder first represented 
plaintiffs in the action 453,530, on appeal here. 
[Rep. Tr. p. 809, lines 3 to 6.] That group is 
still active and was the moving spirit behind the 
cases on appeal here. [Rep. Tr. p. 809, lines 9, 
10.] Plaintiffs delayed filing suit on advice of 
counsel that a suit filed against the alleged Fili­
pino violator, prior to entering of suits against 
appellants here, would “ take care of any other 
violators in the tract” [Rep. Tr. p. 891, line 22, 
to p. 892, line 3], and who believed that the suit 
filed against the alleged Filipino violator was 
a class or representative suit sufficient to bind 
by its judgment all property owners in the tract 
and all other alleged violators o f the agreement. 
[Rep. Tr. p. 894, lines 9 to 19.]



-9 -

Defendants Loftons’ deed was silent as to the 
question of restrictions and made no reference to 
the plan of restrictions [Plaintiff’s Exhibit 34] 
and defendants Loftons testified that they had no 
actual notice of the racial restrictions at the time 
o f purchase. [Rep. Tr. p. 590, lines 19 to 22.] 
Title to the Loftons’ lot was deraigned through 
mesne conveyances from the Bank of Italy, the 
first of which did set forth the restrictions as to 
the use and occupancy and made reference to the 
plan o f restrictions.

Defendants Laws purchased Lot 500 from one 
Gilbert. [ Plaintiff’s Exhibit 40.] Gilbert was
one o f four original owners of the entire tract 
who conveyed it in trust to Bank of Italy for sub­
division purposes [Rep. Tr. p. 764, lines 16 to 
18] Bank of America, successor to Bank of Italy, 
entered into a contract for purchase of the lot 
with one Maude Darden [Plaintiff’s Exhibit 37] 
referring to the restrictions. Bank of America 
later conveyed entire interest in tract back to four 
trustors. [Rep. Tr. p. 114, pp. 3 to 9.] Darden 
later quit claimed all her interest in Lot 500 to 
four trustors. [Plaintiff’s Exhibit 38.] Three 
of the four trustors then conveyed all claimed in­
terest in Lot 500 to Gilbert, one of their number 
[Plaintiff’s Exhibit 39] and Gilbert’s conveyance 
to Laws of Lot 500 made no reference to restric­
tions or of the plan of restrictions. Thus de­
fendants Laws deraign title from a grantor in



— 10—

whom both legal and equitable title had 'merged 
at the time o f sale and who inserted in the deed 
to that Lot 500 no restrictions and made no refer­
ence in that deed to the plan o f restrictions.

Defendants find themselves enjoined from 
using and occupying property which they own 
and which has great value to them but which has 
little or no sale or rental value to persons of the 
Caucasian race, property which had stood vacant 
for many years and which fronts on property 
owned, used and occupied by other Negroes.

In 1930 and prior to the purchase of Lots 
498 and 500 the subdivision trust on Tract 7421 
was closed. The Bank of Italy reconveyed unsold 
lots back to the trustors without inserting in the 
instrument that the lots were subject to the re­
strictions. This act constituted a modification of 
the restrictions which they had a right to do, 
and of which the original grantees had notice. The 
alleged restrictions were no longer enforceable 
since they were created for the benefit of the 
whole tract and not for certain lots in the tract.

The court found that the restrictions are im­
posed for the benefit of each owner of land in said 
tract or any interest therein and was a servitude 
in favor of each and every parcel of land. [Clk. 
Tr. p. 142, lines 12 to 21.]



— 11—

The court found that the provision in said re­
strictions that said lots or parcels of said tract 
shall not be used or occupied by any person not 
o f the Caucasian race is valid and enforceable.

The court further found that the character of 
the community in which Tract No. 7421 is located 
had not changed. [Clk. Tr. p. 120, lines 7 to 10.]

The court further found that it is untrue that 
said Bank of Italy, or any successor in interest 
of said bank did exercise any such discretion, or 
did modify any provision, condition, restriction or 
covenant contained in said Exhibit “ A ” . [Clk. 
Tr. p. 126, lines 2 to 4.]

As a conclusion of law the court found that 
Lee S. Lofton, Jennie P. Lofton, Henry Laws 
and Pauletta Laws should be restrained and en­
joined from using or occupying any portion of 
Lots No. 498 and 500, or any other lot o f said 
Tract No. 7421. [Clk. Tr. p. 144, line 25, to p. 
145, line 9.]

As a conclusion of law the court further found 
that the restrictions are for the benefit of each 
owner of land in said tract, or having any inter­
est therein. [Clk. Tr. p. 142, lines 13 to 16.]

As a conclusion of law, the court further found 
that the restrictions are imposed upon said prop-



— 1 2 —

erty as a servitude in favor of each and every lot 
or parcel of land in said tract as the dominant 
tenement or tenements. [Clk. Tr. p. 142, lines 
18 to 21.]

And as a conclusion of law, the court further 
found that as to each lot owned in said tract, re­
strictions are covenants running with the land and 
the breach thereof for the continuance of any 
such breach may be enjoined, abated or remedied 
by appropriate proceedings. [Clk. Tr. p. 142, 
line 23, to p. 143, line 1.]

Specifications of Error.

1. A  finding that the restrictions are imposed 
for the benefit of each owner o f land in said tract 
is contrary to law.

2. A  finding that the provision in said restric­
tions that said lots or parcels o f said tract, shall 
not be used or occupied by any person not of the 
Caucasian race is valid and enforceable is not 
supported by the evidence, is contrary to law, and 
against the policy of the law.

3. A  finding that the character o f the com­
munity in which Tract No. 7421 is located had 
not changed, is not supported by the evidence.



13

4. A finding that the Bank of Italy or its 
successors had not exercised its discretion or 
modified the provision, is not supported by the 
evidence.

5. The conclusion of law and the judgment 
permanently and perpetually enjoining Lee S. 
Lofton, Jennie P. Lofton, Henry Laws, Anna 
Laws and Pauletta Laws are not supported by 
the evidence.

6. The preponderance of evidence conclusively 
shows that the racial character of the community 
in which Tract 7421 is located had changed ma­
terially, and that the lots so used and occupied 
by appellants had little or no sale value to 
Caucasians.

7. The preponderance of evidence conclusively 
shows that the Bank of Italy did modify the re­
strictions and that its successors did modify the 
restrictions.

8. That a finding that the Bank of Italy was 
the owner o f the real property known as Tract 
7421 and was not a necessary party to a complete 
determination of the controversy, and that there 
has not been a defect or non-joinder of parties 
plaintiff, is not supported by the evidence.



— 14—

9. A  conclusion found that the restrictions 
are for the benefit of each owner of land in said 
tract or having any interest therein, is contrary to 
the evidence and an error in law.

10. A  conclusion found that the restrictions 
are imposed upon said property as a servitude in 
favor o f each and every lot or parcel of land in 
said tract as the dominant tenement or tenements, 
is not supported by the evidence and is an error 
in law.

11. A  conclusion found that the restrictions 
are covenants running with the land and the 
breach thereof for the continuance of any such 
breach may be enjoined, abated or remedied by 
appropriate proceedings, is not supported by the 
evidence, and is an error in law.

12. A  conclusion found that said restrictions 
are for the benefit o f each owner o f land as 
aforesaid, and are imposed upon said property as 
a servitude in favor of each and every lot or par­
cel o f land and are covenants with the land, is 
contrary to the evidence where the evidence af­
firmatively shows that the grantor imposed the 
alleged restrictions on the lots conveyed to the 
grantee, but in nowise bound itself to impose re­
strictions on any which was retained by it, or con­
vey to the property which it may have held sub­
ject to the same or similar restrictions, or to do 
anything in favor of the property of the grantee.



1 5 -

ARGUMENT.
There Can be No Equitable Servitude Where 

No Dominant Tenement Created.

The law is well settled in California that there 
can be no equitable easement without the creation 
o f a dominant tenement.

Wing v. Forest Lawn Cemetery Assn., 15 
Cal. (2d) 472;

Wagoner v. Hannah, 38 Cal. I l l ;
Werner v. Graham, 181 Cal. 174.

Reference to the so-called “ building restric­
tions o f Tract 7421 known as the New Goodyear 
Tract Unit No. Two” [Clk. Tr. p. 30, line 11, 
to p. 34, line 24] discloses the fact that the 
instrument purports to create dominant and 
servient tenements in these words, the owner of 
the real property

“ hereby certifies and declares that it has 
established and does hereby establish a gen­
eral plan for the improvement and develop­
ment of said Tract, and does hereby estab­
lish the provisions, conditions, restrictions 
and covenants upon and subject to which all 
lots and portions of lots in said Tract, herein 
referred to as ‘said property,’ shall be im­
proved or sold and conveyed by it as such 
owner, each and all of which is and are for 
the benefit of each owner of land in said 
property, or any interest therein, and shall 
inure to and pass with each and every parcel



— 1 6 —

of said property and shall apply to and bind 
the respective successors in interest of the 
principal owner or owners thereof, and are 
and each thereof is imposed upon said 
property as a servitude in favor of each and 
every such parcel of land therein as the 
dominant tenement or tenements.” [Clk. 
Tr. p. 30, line 20, to p. 31, line 8.]

Following that declaration the restrictions are 
set forth in detail and if the documents were 
silent except as to restrictions from that point 
forward there could be no question but that a 
dominant tenement had been created, and that 
subsequent grantees would have been given the 
right which they assert in the case at bar. 
However, the subdivider did not stop at that 
point. It provided that:

“ The Bank o f Italy hereby reserves the 
right to modify at its discretion the pro­
visions, conditions, restrictions and cove­
nants herein contained.”  [Clk. Tr. p. 34, 
lines 13 to 15.]

Thus, what it had given with one hand, it took 
back with the other hand; it could at any time 
have modified any condition, restriction, or pro­
vision and taking with notice as they did, grantee 
could have had no cause for complaint had the



- 1 7 -

Bank so modified the conditions, restrictions, and 
covenants as to admit a Negro to the right of 
use and occupancy in the Tract.

An instrument creating or claiming to create 
a servitude will be strictly construed any doubt 
being resolved in favor of the free use of the 
land.

Werner v. Graham, 181 Cal. 174;
Firth v. Marovich, 160 Cal. 257;
Berryman v. Hotel Savoy Co., 160 Cal. 

559;
Bresee v. Dunn, 178 Cal. 96;
26 C. J. S. 515, 516.

The Court in this case is then confronted with 
a situation in which the original grantor was in 
no wise found to impose restrictions and where 
the subsequent grantees could not have com­
plained had the grantor failed or refused to im­
pose restrictions. Under such circumstances the 
grantees cannot maintain an action for injunction 
to restrain alleged violations of the racial restric­
tive covenant. Where the grantor in no wise 
bound itself to impose restrictions on any prop­
erty retained by it or to convey other property 
which it may have held subject to the same or 
similar restrictions or to do anything in favor



— 18—

o f the property o f the grantee equitable servitude 
is not created.

Wing v. Forest Lawn Cemetery Assn., 
15 Cal. (2d) 472 at 481.

Where a grantee cannot compel his grantor to 
reserve the restrictions, he cannot compel a sub­
sequent grantee to do so. That statement is 
quoted with approval in Wing v. Forest Lawn 
Assn., supra, in quoting from a Missouri case.

“ The next inquiry is whether the deed 
from the St. Louis Improvement Company 
to respondent imposed a negative easement 
in favor of the grantee on the remaining 
lands o f the grantor, which included the lot 
subsequently purchased by appellants. In 
this connection it will be noted that all the 
covenants in that deed, which may be termed 
restrictive, were made on the part o f the 
grantee. The grantor made none. That 
fact, standing alone, shows prima facie that 
the restrictions were imposed solely for the 
benefit of the grantor’s remaining land. 
Consequently, if the grantor made use of his 
remaining land which did not conform to 
such restrictions, his grantee had no ground 
of complaint. And if the grantee could not 
compel his grantor to observe the restric­
tions, he could not compel a subsequent 
grantee to do so. Beattie v. Howell, 98 
N. J. Eq. 163, 129 A. 822. However, the



1 9 -

deed from the St. Louis Improvement Com­
pany to respondent expressly provided that 
the restrictions were made ‘for the mutual 
benefit of all parties purchasing lots by 
similar conveyances from this grantor.’ But 
the grantor on its part did not covenant to 
make similar conveyances of the lots, or 
any o f them, and he did not make a similar 
conveyance to appellants’ grantor.”

Kuhn v. Saum, 316 Mo. 805.

Reservation o f the right to modify gives the 
grantor the right to vary the restrictions and to 
permit building of a kind wholly differing from 
those described in restrictions.

One and Three South William St. Bldg.
Corporation v. Gardens Corporation.
232 App. Div. Reports (N . Y .) 59.

In the case just cited earlier deeds provided 
for houses of a certain character and the sub­
division had become one o f New York City’s 
most beautiful residential centers. Under the 
right to modify the subdivider permitted the con­
struction o f an apartment house. The court 
held that the right to “ waive change and modify” 
gave the subdivider the right to permit the con­
struction sought to be enjoined, remarking that 
the grantees had notice of that right through 
the reservation in the restrictions.



- 2 0 -

Equity Will Not Enjoin Use and Occupancy 
Merely to Harass a Lot Owner.

There is no dispute in this case that defendants 
Loftons and Laws who were enjoined from 
using and occupying respectively Lot 489 and 
Lot 500 in Tract 7421, or any other lot or lots 
in the Tract, are Negroes, and that the lots 
occupied by them are located on the southern 
border line street o f Tract 7421. Additionally, 
the evidence shows that the lots occupied by them 
are directly across the street from and their 
houses face a subdivision occupied almost ex­
clusively by Negroes. [Rep. Tr. p. 518, lines 
17 to 20.]

The evidence is also clear that o f the twenty- 
one lots on East 92nd street, the southern border 
line street of Tract 7241, only six are occupied 
as dwellings [Rep. Tr. p. 656, line 24, to p. 657, 
line 6] and appellants herein occupied two of 
those dwellings. Tract 7421 was opened as a 
subdivision in 1923, but the rest o f the lots 
remain vacant. The houses located on East 92nd 
street that face the homes occupied by appellants 
herein are occupied by Negroes. [Rep. Tr. p. 
660, line 23, to p. 661, line 2.]

Appellants’ witnesses testified that the lots 498 
and 500 had little or no sale value to persons of 
the Caucasian race, but could be sold to colored 
people. One witness stated categorically that ef­
forts had been made to sell the property to Cau-



— 2 1 —

casians, but that they would not buy. [Rep. Tr. 
p. 685, lines 6-7.] There is absolutely no evidence 
to the contrary. The factual situation is plain: 
Appellants are occupying lots on a sparsely set­
tled street, the lots have little or no sale value 
to Caucasians, but do have value to Negroes and 
the lots are located on a street one side of which 
is an area of Negro occupancy. Under that 
situation the effect of an injunction restraining 
continued use and occupancy would be to harass 
appellants herein. Equity will not grant relief 
under such circumstances.

Downs v. Kroeger, 200 Cal. 743.

The situation in Downs v. Kroeger, supra, is 
the identical factual situation presented here, ex­
cept that in Dozmis v. Kroeger, supra, an effort 
was made to enforce a building restriction and in 
this case a racial restriction is sought to be en­
forced. In the cited case the trial court made 
findings in favor o f the alleged violator while 
in the case at bar the trial court has made find­
ings against the alleged violator. But on prin­
ciple it is submitted that the final judgment in 
the case at bar should accord with that which 
finally obtained in the cited case.

Although respondents in the case at bar al­
leged that they would be and were being dam­
aged by appellants’ use and occupancy o f the 
lots, it is significant that there is not a single



- 2 2 -

word o f testimony to that effect in the record. 
Nor is there any testimony that the granting of 
the injunction would or can confer any benefit on 
them whatsoever. None o f the respondents in 
the cases below were residents of East 92nd 
street, the street occupied by appellants herein. 
Although the Court made a general finding 
X L V II [Clk. Tr. p. 123, line 13] that the allega­
tions o f the complaints in respect to damages 
were true, such a finding has no support in the 
evidence and it is essential in a case o f this kind 
that damage will flow from non-enforcement of 
the restrictive covenant or that benefit will ac­
crue from enforcement of the covenant.

Downs v. Kroeger, 200 Cal. 743.

The rule is well stated as follows:
“While it has been held that under proper 

circumstances equity will give relief in case 
o f a breach o f a restrictive covenant regard­
less of the fact that the complaint has 
suffered no substantial injury, the more 
general rule, particularly in the case of re­
strictions imposed by a general building 
plan is that equity will not take cognizance 
o f technical or immaterial violations.”

26 C. / .  S. 574.



— 2 3 —

“ Equity will not as a rule take cognizance 
o f a violation o f a restriction . . . where 
the enforcement would have no other result 
than to harass or injure defendant without 
effecting the purpose for which it was 
originally made.”

26 C. J. S. 774, 775.

True enough there is an expression in an earlier 
California case, Walker v. Haslett, 44 Cal. App. 
394, to the effect that damage need not be al­
leged; the practical effect of the holding of 
Downs v. Kroger, supra, is to abrogate that rule 
where as here there are other circumstances such 
as change in the character of the community, as 
will be dealt with later, and other circumstances 
negating damage to plaintiffs. In other words, 
where evidence is introduced showing lack of 
damage and. absence of material benefit to com­
plainants the complainants must meet the issue 
by showing damage to themselves.

The foregoing condition is strengthened when 
the relief sought is in essence a mandatory in­
junction.

Vesper v. Forest Lawn Cemetery Assn., 
20 Cal. App. (2d) 157;
57 A. L. R. 336.



— 24—

There can be no doubt that mandatory injunc­
tion is sought in this case for the purport o f the 
decision if injunction is granted is to require ap­
pellants to act.

Feinberg v. One Doe Co., 14 Cal. (2d) 
24.

The judgment clearly is not supported by the 
evidence as to Lots 498 and 500 and the attempt 
to enjoin appellants’ use and occupancy “ of any 
other lot in Tract 7421”  is beyond the jurisdic­
tion o f the court since this is not a class or 
representative suit and since each lot in the 
Tract would be subject to an inquiry as to con­
ditions surrounding it.

Downs v. Kroeger, 200 Cal. 743;
Hansberry v. Lee, 311 U. S. 32.

Changes in the Character of a Neighborhood 
Will Stay Enforcement of a Restrictive 
Covenant.

The rule is well established in California that 
equity will not decree enforcement o f a restrictive 
covenant against a particular lot in a case where 
by reason of a change in the character of the 
surrounding neighborhood, not resulting from a 
breach of the covenant, it would be oppressive 
and inequitable to give the restriction effect as 
where the enforcement of the covenant would



- 2 5 -

have no other result than to harass or injure 
the defendant without benefiting the plaintiff.

Hurd v. Albert, 214 Cal. 14;
Friesen v. City o f Glendale, 209 Cal. 524;
Hess v. Country Club Park, 213 Cal. 613;
Downs v. Kroeger, 200 Cal. 743.

The rule as announced in Hurd v. Albert, 
supra, was enunciated as controlling in building 
restriction cases, and is the distillation of a long 
line o f cases involving building restrictions. The 
same rule is applicable in cases involving racial 
restrictions.

Latteau v. Ellis, 122 Cal. App. 584;
Koehler v. Rowland, 275 Mo. 573;
Hundley v. Gorewitz, .....  Fed. Rep........

In Letteau v. Ellis, supra, the court discussed 
the question of the applicability o f the rule in 
building restrictions to cases involving racial re­
strictions in these words:

“ But, argue respondents, the found 
changed conditions make it unjust and in­
equitable to enforce the conditions. There 
is much authority in support o f respondents’ 
position. (Downs v. Kroeger, 200 Cal. 
743; Hess v. Country Club Park, 213 Cal. 
613; Hurd v. Albert, 214 Cal. 15.) These 
cases deal with the restrictive covenant and 
conditions limiting the use of real estate, the



- 2 6 -

particular restrictions being as to the 
maintenance o f the property as residential. 
The holding in each case is that where there 
has been a change in the use to which prop­
erty in the neighborhood is being put, so 
that such property is no longer residential 
property, it would be unjust, oppressive and 
inequitable to give effect to such restric­
tions, if such change has resulted from 
causes other than their breach. A  refer­
ence to these cases suffice. The subject is 
exhaustively covered and leaves no further 
ground of discussion.”

The court then brushes aside the argument 
that a so-called race restriction is not within 
either the spirit or the letter o f the doctrine 
announced in building restriction cases. The 
rule as to change is also well illustrated in Hund­
ley v. Gorewitz, supra, where the Court says:

“ However, it is equally well settled that 
since the purpose of such restrictions is the 
mutual benefit o f the burdened properties, 
when it is shown that the neighborhood in 
question has so changed in its character 
and environment and in the use to which 
the property therein may be put that the pur­
pose of the covenant cannot be carried out 
or that its enforcement shall substantially 
lessen the value o f the property, or, in short, 
that injunctive relief would not give a bene­
fit by rather imposing a hardship, the rule 
will not be enforced.”



- 2 7 -

Counsel for respondent raised some question 
in the Court below as to applicability of the rule 
as to changes outside the tract as obtaining in 
building restriction cases to cases involving 
racial restriction. On principle it would seem 
that the rule should not vary and it is unthink­
able that the Courts will throw a greater safe­
guard around the right to establish a business 
than it will around the right o f American citizens 
to occupy their own homes. So far as appel­
lants know, the question has never been directly 
adjudicated. However, it has been said:

“ It is true that where circumstances are 
changed owing to the material growth o f a 
city or of the principal use of a whole 
neighborhood so that the purposes o f a re­
striction in a conveyance no longer can be 
accomplished and it would be oppressive and 
inequitable to give effect to such restriction, 
the Courts will not enforce it.”

Koehler v. Rowland, 275 Mo. 573.

The Court’s finding that there had been in­
sufficient change in the character o f the neighbor­
hood to stay the hand of equity in the case at bar 
is contrary to the evidence. There is no dispute 
that the Central Gardens Tract, a portion of 
which adjoins Tract 7421 on the south, was de­
veloped roughly simultaneously with Tract 7421 
although it was apparently laid out a year before 
Tract 7421. The record is replete with evidence



— 2 8 —

that Central Gardens Tract is populated almost 
exclusively by Negroes. Ninety-second street is 
the dividing line between Tract 7421 and the 
Central Gardens Tract. Houses on that street 
face each other. Homes occupied by appellants 
face homes occupied by Negroes in the Central 
Gardens Tract. The Pardee Tract adjoins 
Central Gardens Tract and a portion of Tract 
7421 on the east. Conditions o f racial occu­
pancy in the Pardee Tract have changed ma­
terially since 1923 and even respondents’ wit­
nesses testified that the change continues. [Rep. 
Tr. p. 630, lines 10 to 12.] The evidence also 
shows that there has been a general northerly 
migration o f Negroes toward Tract 7421 since 
the subdivision of Tract 7421, and that whereas 
Negroes in appreciable numbers lived in the 
vicinity of 105th street when Tract 7421 was 
subdivided, they now live as far north as 89th 
street to the east of Tract 7421 and as far north 
as 92nd street directly south of Tract 7421. 
[Rep. Tr. p. 484, lines 10 to 13.] The increase 
o f Negroes in the immediate vicinity has made 
for a consequent increase o f Negroes using the 
public streets in and about Tract 7421. A  
market located in the center o f Tract 7421 at­
tracts Negro customers. [Rep. Tr. p. 764, line



— 29—

23.] A  bus line routed through Tract 7421 car­
ries large numbers of Negro passengers. [Rep. 
Tr. p. 750, lines 4 to 7.]

Change is a relative term, and when change 
is asserted as bearing on the right to occupy a 
parcel o f land, a court of equity should and must 
view the whole situation. Change sufficient to 
permit occupancy of a border line lot might fall 
far short of change required to permit occupancy 
of an interior lot in a tract. Furthermore, the 
use of a border line lot in violation of a restric­
tive covenant does not invalidate an entire re­
strictive covenant and equity may well find such 
change as will permit violative use o f that border 
line lot, while leaving other lots bound as be­
fore.

Downs v. Kroeger, 200 Cal. 743.

It must be remembered that appellants herein 
did not cross-complain for relief invalidating the 
entire restrictive covenant; they sought and they 
seek only to be left undisturbed in use and oc­
cupancy of their border line lots, and certainly 
the weight of evidence as to change as to the 
character of the community in which those 
border line lots are located preponderates in ap­
pellants’ favor when the whole situation is taken



— 30—

into account. The whole situation is that appel­
lants seek to use and occupy lots located directly 
across a forty-foot street from other property 
used and occupied by Negroes; that prior to their 
purchase and use and occupancy the lots on their 
side of the street were largely vacant; the lots 
they use and occupy have little or no value to 
persons o f the Caucasian race; the street on 
which the lots are located is continually used as 
a thoroughfare by Negroes; the plaintiffs failed 
to show any damage to themselves by appellants’ 
use and occupancy, and that no material benefit 
will flow to respondents from enforcement of 
the restrictive covenant. Occupied as it is on 
one side by Negroes and with lots on the other 
side largely vacant, 92nd street is essentially a 
“ Negro” street, not only along the border line 
o f Tract 7421, but far to the east where it 
bisects the Pardee Tract.

The practical effect o f depriving appellants of 
the right to use and occupy their lots would be 
to establish a virtually uninhabitable section of 
the city, a very undesirable result, especially in 
these times when there is already overcrowding 
and inadequacy of housing facilities.

Hundley v. Gorewitz, supra.



- 3 1 -

Laches and Waiver Will Bar the Right to 
Enforce a Restrictive Agreement.

The principal factors in determining the ques­
tion o f laches are acquiescence and lapse of time 
but other circumstances are also material such 
as that a change in the value or character of the 
property has taken place.

Chapman v. Bank of California, 97 Cal. 
155.

Respondents’ attorney stipulated that all of re­
spondents knew that appellants Loftons began 
occupancy of lot 498 in Tract 7421 at the time 
they began that occupancy in October, 1939. 
[Rep. Tr. p. 636, lines 2 to 7.] The records show 
that the first suit filed against appellants Loftons 
was commenced on June 24, 1940 [Clk. Tr. p. 10, 
lines 19, 20] a period of more than nine months 
after appellants Loftons began occupancy and 
that they had made certain improvements to 
their property before the first suit was filed. They 
had built a fence, constructed a concrete drive­
way, put in a lawn, and made certain additions 
to the porch. [Rep. Tr. p. 583, line 14; p. 584, 
lines 14, 20, 24; p. 585, lines 18, 22 to 25; p. 
586, lines 3 to 5, 22.] It will be observed that a 
greater part of these improvements were done in 
such view that respondents had means of knowl-



- 3 2 -

edge, and under some circumstances means of 
knowledge may properly be accounted actual 
knowledge.

Tucker v. Beneke, 180 Cal. 588.

The second suit in which defendants Loftons 
appear herein as appellants was not commenced 
until August 7, 1941 [Clk. Tr. p. 42, lines 19, 
20], a period of one year and ten months after 
Loftons began occupancy. There is no hard and 
fast rule as to what lapse of time coupled with 
other factors will constitute laches. It has been 
held that inactivity for a period of six months 
after completion of work sought to be abated, the 
doctrine of laches is to be invoked.

Los Angeles Athletic Club v. Long Beach, 
128 Cal. App. 427.

In considering the applicability or inapplicabil­
ity of the doctrine of laches, one should consider 
all surrounding circumstances and in this case it 
is submitted that there is no sufficient reason to 
excuse inactivity on the part of respondents 
named in the first action or respondents named 
in the second action.

By way of excuse for their inactivity the trial 
court permitted respondents, over objection of 
appellants, to detail a long series o f meetings held



— 3 3 —

by owners of lots within the Tract, a consequent 
consultation with various attorneys and the ad­
vice offered by those attorneys. [Rep. Tr. p. 

798, lines 8 to 10; p. 806, lines 12 to 16; p. 806, 
lines 23 to 26; p. 808, lines 19, 20.] The court 
also permitted introductions into evidence over 
appellants’ objections of letters from a resident 
o f the Tract not a party to any o f these actions, 
to Bank of America and a letter from an attorney 
representing the group of Tract owners and to 
the Bank of America, and replies to each of those 
letters. [Plaintiff’s Exhibits 45, 47, 48, 49.] 
Seasonable motions to strike all evidence relative 
to the activities of the group and the letters as 
admitted, were made by appellants. Appar­
ently respondents and their attorney were act­
ing on the belief that a suit involving restric­
tive covenant was a class or representative 
suit, and that an action against an alleged Fili­
pino violator allegedly living in the interior of 
the Tract was regarded as in essence an action 
against appellants. [Rep. Tr. p. 891, line 22, to 
p. 892, line 3.] However, it has been held by the 
Supreme Court of the United States that such 
suits are not class or representative suits, and 
the only way that respondents could assert any 
rights as against these appellants was to name 
them parties defendant.



— 3 4 —

“ Where the covenant did not create joint 
obligation or liability, the several property 
owners did not constitute a single class, and 
there was a potential conflict of interest as 
between the parties to the suit and the per­
sons purported to be represented in that the 
latter might determine it to their interest to 
challenge rather than assert the restriction.”

Hansberry v. Lee, 311 U. S. 32.

The case just cited also involved attempts to 
enforce a racial restrictive covenant, and the 
holding was clear and plain that such suits are 
not class or representative suit, and that any ad­
judication binds only parties named as defendant 
or as plaintiffs.

In view of that holding it cannot be said in 
the case at bar that respondents relieved them­
selves of any laches by their own mistake o f law 
that they could bind appellants’ property by pro­
ceeding against another alleged violator, and in 
view of the lapse of time between the knowledge 
of appellants Loftons’ occupancy and the com­
mencement of the suits it would seem that the 
appellants Loftons should be left undisturbed in 
their use and occupancy.

There is the additional question o f waiver, 
especially as it relates to the second action filed 
in 1941, almost two years after knowledge of 
appellants Loftons’ occupancy. Waiver o f the 
right to enforce a building restriction is recog-



- 3 5 -

nized as a valid defense to an action to enforce 
forfeiture or breach of a condition.

Los Angeles and Arizona Land Co. v. 
Marr, 187 Cal. 126.

Although it is apparent that respondents in 
the second action believe that they could relate 
their rights back to the filing of the first action, 
still in view of the holding in Hansberry v. Lee, 
supra, it is apparent that they could not do so, 
and if they could, their long silence must certainly 
amount to acquiescence in the occupancy of the 
appellants Loftons. In view of the law and the 
evidence as revealed by the record, it is submitted 
that the finding that there had been no laches or 
waiver is against the weight of the evidence in so 
far as appellants Loftons are concerned.

Appellants Laws purchased their parcel on con­
tract November, 1935 [Rep. Tr. p. 536, line 19] 
recorded deed to it August 29, 1940 [Defendant’s 
Exhibit A ] and began building a home on it in 
June, 1941. [Rep. Tr. p. 540, lines 8 to 10.] 
Prior to the construction of the home, appel­
lant Henry Laws testified that he had made cer­
tain use of the parcel extending over a period of 
approximately seven years. [Rep. Tr. p. 564, 
lines 19, 20; p. 565, line 3 ; p. 566, line 6; p. 567, 
lines 4 and 8.] Respondents disputed that testi­
mony sharply, and it is conceded that appellant 
Laws was named defendant in a suit filed shortly 
after he began occupancy. All that has been said



— 3 6 —

of the doctrine of laches and waiver as to ap­
pellants Loftons applies with equal force to appel - 
lants Laws with exception of the fact that re­
spondents denied knowledge of his use. That 
denial must, of course, be viewed in light of the 
familiar rule that means of knowledge may in 
some instances be determined to be knowledge, 
and all that respondents could possibly deny was 
not use o f the lot but knowledge of the use. 
Means of knowledge is equivalent to knowledge.

Tynan v. Kerns, 119 Cal. 447.

A Restriction of Use and Occupancy 
Unlimited as to Time Is Void.

Where no time is specified in said agreement 
(limiting racial occupancy) for its duration, it 
was void as being contrary to the provisions of 
Sections 711 and 715 of the Code of Civil Pro­
cedure, which prohibit an unlimited restraint on 
alienation.

Foster v. Stewart, 134 Cal. App. 482.

The holding in the cited case is plain and un­
equivocal and it is undisputed that so-called 
“ building restrictions” [Plaintiff’s Exhibit 2] in 
the case at bar are unlimited as to time. Foster 
v. Stewart, supra, was decided in 1933 and it is 
noteworthy that it has been cited as authority by 
text writers and in virtually in every digest issued 
since the decision. It has never been modified 
or limited or overruled by any later California



— 3 7 -

case, either by the Courts of Appeal or by the 
Supreme Court. It certainly is binding until some 
disposition is made of it, and it would seem to 
be controlling in the case at bar. Such criticism 
as has been leveled at Foster v. Stewart, supra, 
seems to be based upon the ground that prior 
decisions had held that restraints on use and 
occupancy are not restraints upon alienation, and 
hence not within the prohibition o f Sections 711 
and 715 o f the Code of Civil Procedure. That 
criticism begs the points upon which the ruling 
in Foster v. Stewart, supra, was made. A  careful 
reading of the case will reveal the fact that the 
agreement in question had provided that “ the 
owners o f the said several parcels o f land will 
not permit the said property or any part thereof 
to be leased to or rented to nor shall the same 
even be used or occupied by any person” o f the 
proscribed groups. In essence the court held that 
where the inducements for the signing of the 
covenant were not segregated and one o f the in­
ducements was violative of the rule against re­
straints on alienation the whole covenant would 
be void. Viewed in that light, the decision in 
Foster v. Stewart, supra, is sound. The re­
strictive phrase in the case at bar is very similar 
to the covenant in the cited case, and reads “ that 
said premises shall not be leased, sold, or con­
veyed to or used or occupied by any person not 
of the Caucasian race.” [Clk. Tr. p. 32, lines 
6 to 8.]



-38—

All Necessary Parties to a Complete De­
termination of an Action Should Be Made 
Parties to the Action.

By seasonable motion [Clk. Tr. p. 50, line 1, 
to p. 51, line 19] appellants moved to require re­
spondents to name as parties plaintiff or defend­
ant each and every lot owner in Tract 7421 on the 
ground that each of said lot owners was an in­
dispensable to the complete determination of the 
controversy. The motion was denied. It is well 
settled that if the necessary parties to a full de­
termination o f all issues are not before the court, 
it is the duty of the court on its own motion or 
on the motion of the parties to bring them before 
the court.

Title Guaranty v. Henry, 208 Cal. 185;
O’Connor v. Irvine, 74 Cal. 435;
Lake v. Dow, 207 Cal. 290.

The requirement that indispensable parties be 
before the court is mandatory.

Hartman Ranch Co. v. Associated Oil 
Co., 10 Cal. (2d) 232.

Where the record indispensably shows that a 
complete determination of the controversy cannot 
be had without the presence of other parties, 
such parties become necessary and indispensable,



3 9 —

and Section 389 of the Code of Civil Procedure 
is mandatory, and the question then becomes one 
of jurisdiction in that the court may not proceed 
without bringing them in.

Ambassador Petroleum Co. v. Superior 
Court, 208 Cal. 667;

Bank of America v. Superior Court, 16 
Cal. (2d) 516.

I f defendants actually before the court may be 
subjected to undue inconvenience or to danger of 
loss or to future litigation or more extensive lia­
bility by reason o f the absence of necessary par­
ties, they may object to proceeding without them. 

20 Cal. Jur. 575, 576.

It has been held that cases involving attempts 
to enforce restrictive covenants such as this one 
are not class or representative suits, and that 
adjudication in any such case binds only those 
actually before the court.

Hansberry v. Lee, 311 U. S. 32.

In view of that holding, it is perfectly apparent 
that the decision in this case cannot bind other 
lot owners in Tract 7421. They can even if ap­
pellants finally prevail, file new actions to harass 
and vex appellants. The history of the case in



— 40—

that respect is itself restrictive. The first case 
denominated, Burkhardt v. Lofton, filed in 1940, 
was still pending and undetermined when the sec­
ond case, now on appeal, denominated, Burkman 
v. Liddy, et al., was filed. Issues in the two cases 
were identical. Defendants were identical, yet 
appellants herein found themselves faced with 
having to defend a second law suit. Had other 
parties resident in the tract been so inclined, they 
could have filed a third law suit. While this ap­
peal is pending, another resident or group of resi­
dents may file other law suits; the number is 
limited only by number o f residents in the tract. 
It is no answer to this state of afifairs to say that 
this action is simply one to determine adverse 
claims as to plaintiffs and named defendants. 
Since it is an equity action, and since equity does 
not act piecemeal, the whole controversy should 
be determined at once, and since respondents 
herein initiated the suit, the court should have 
required them to complete the action by naming 
the necessary and indispensable parties to a com­
plete determination o f the issue to the end that 
appellants may not be subjected to the danger of 
future litigation. It is respectfully submitted 
that the trial court erred in denying appellants' 
motion for adjoining o f additional parties.



— 4 1 —

An Injunction Should Not Issue to Re­
strain the Alleged Violation of Restric­
tions in a Tract Where the Restrictions 
Have Been Modified and the Original 
Grantees Took the Lots With Notice 
That the Grantor Reserved the Right to 
Modify the Restrictions.

(1 ) A  S u b s e q u e n t  G r a n t  C o n t r a r y  t o  R e ­
s t r i c t i o n s  b y  a  G r a n t o r  W i t h  P o w e r  t o  
M o d i f y  O p e r a t e s  a s  a  R e v o c a t i o n  o f  
t h e  O r i g i n a l  I n s t r u m e n t .

As has been made plain from the statement 
o f fact of this case, concerning which there is 
no dispute, the Bank of Italy closed the trust 
in December, 1930, and delivered the assets con­
sisting o f unsold lots back to the settlors, the 
legal title having been in the Bank of Italy only 
as trustee. [Rep. Tr. p. 114, lines 3 to 9.] As 
to Lot 500 o f said tract, the lot was conveyed 
back to the trustors, who in turn conveyed it to 
one o f their trustors, Henry D. Gilbert, who 
conveyed the lot to Henry and Anna Laws in 
1940, appellants and owners o f said Lot 500. 
No provision was inserted in the deeds by refer­
ence or otherwise, .restricting the use or occu­
pancy because of race. [ Plaintiffs’ Exhibits 38, 
39 and 40; Rep. Tr. p. 536, lines 3 to 19; p. 
786, line 9, to p. 787, line 26.]

At once it becomes apparent that when the 
bank conveyed the unsold lots back to the trustors 
without restrictions, trustors’ conduct amounted



— 4 2 —

to a modification o f the provisions concurred in 
by the trustors. It is a general rule of law that 
the parties to a contract have the right to change 
it at any time during its life.

Kennedy v. Lee, 147 Cal. 596;
Main St. etc. Railroad Co. v. Los Ange­

les Traction Co., 129 Cal. 301;
Civil Code, Section 1698.

A  written agreement may be abrogated by an 
executed oral contract.

Twohey v. Realty Syndicate Co., 4 Cal. 
(2d) 397.

In the case of Bard v. Kent, 37 Cal. App. (2d) 
160, the court held:

“ That an oral agreement between the 
parties providing for the payment o f com­
mission to a real estate broker and the re­
conveyance to the trustor o f the remaining 
lots of a subdivision trust was an executed 
oral agreement.”

It would seem, therefore, that in the case at 
bar the reconveyance to the trustors of the re­
maining lots of the subdivision trust was a suf­
ficient executed agreement modifying the restric­
tions set forth in Exhibit “ A ”  of plaintiffs’ com­
plaints. The actual and presumed intent to 
modify the restrictions is likewise indicated by 
the merger of the legal and equitable estates in



the trustors, I. B. Rubin, Henry D. Gilbert Solo­
mon Gross and Joseph Moent. By having a fee 
simple title to the unsold lots they held an estate 
inheritable and not subject to conditions or col­
lateral determination.

In re Waltz, 197 Cal. 263.

Where the whole legal title as well as the 
equitable, unite in the same person, a merger 
takes place.

Boye v. Boerner, 12 Cal. App. (2d) 186.

W e submit, that when plaintiffs or their prede­
cessors in interest purchased lots in the subject 
tract, they were put on notice that notwithstand­
ing the fact that the alleged restrictions were for 
the benefit o f each owner of land in said tract, 
or any interest therein as a servitude o f each and 
every lot or parcel of land in said tract as the 
dominant tenement or tenements, they took with 
notice as did the appellants herein, that the trus­
tees reserved the right to modify the restrictions, 
which was done in the case at bar. If, there­
fore, a modification of the restrictions took place 
as to the remaining unsold lots, then a modifica­
tion took place as to each and every lot or parcel 
of land in said tract, since the owners o f said 
lots took the same with notice that the restric­
tions were covenants running with the land as to 
each and every lot in said tract and subject to a 
modification by the grantor, Bank of Italy. The



44

restrictions were for the benefit of the tract and 
not for the individual lots in said tract since any 
lot in said tract could have been sold free of 
any burdens o f restriction by the trustees by vir­
tue o f their power to modify the restrictions.

W e cannot refrain from stating at this point 
that the Bank of Italy as trustor, considered the 
restrictions at an end upon the closing o f the 
trust, and the acceptance o f the unsold lots free 
o f any restrictions, covenants or conditions by 
the trustors. It is not a matter of conviction by 
a question long decided by our cases in Califor­
nia. In the case of Werner v. Graham, 181 Cal. 
174, the court held:

“ That where the owner o f a tract o f land 
subdivided it into lots and make sales of the 
lots subject to certain building restrictions, 
and thereafter quit claimed to the owner of 
one o f the lots any interest he had in it, the 
effect was to release the restrictive pro­
visions as to such lot so far as it was in the 
power of the original owner to do so.”

In addition to the ample reason already given, 
the provisions are in fact conditions not to be 
enforced by other lot owners under the deeds 
from the same grantor against the appellants, but 
are in favor of the grantor, since by assigns is 
meant the assignor o f the reversion or right of 
re-entry.

Werner v. Graham, supra;
McBride v. Freeman, 191 Cal. 158.



— 45—

(2) A n E q i t a b l e  S e r v i t u d e  Is N o t  C r e a t e d  
W h e r e  t h e  U n d e r s t a n d i n g  o f  t h e  P a r ­
t i e s  Is L e f t  t o  M e r e  C o n j e c t u r e .

George Wixson and Rose Wixson, original 
grantees, and predecessors in interest o f Lot 
498 of Tract 7421, now owned by Lee S. Lofton 
and Jennie P. Lofton, some of the appellants 
herein, by grant deed took title to said lot 
February 24, 1928, subject to the provisions of 
the general restrictions on said tract. [Clk. Tr. 
p. 40, line 7; PI. Ex. 32.] In 1939 and subse­
quent to the modification heretofore and here­
after mentioned, George Wixson and Rose W ix­
son conveyed title to said lot to Lee S. Lofton 
and Jennie P. Lofton, some of the appellants 
herein. [PL Ex. No. 34; Rep. Tr. p. 200, 
line 25.]

Maude V. Darden, original grantee and 
predecessor in interest of Lot 500 of Tract 7421, 
now owned by Henry Laws, Anna Laws and 
Pauletta Laws, some of the appellants herein, by 
grant deed took title to said lot August 28, 1930, 
subject to the provisions o f the general restric­
tions on said tract. [Clk. Tr. p. 88, line 23, to 
p. 89, line 2; PI. Ex. 37.] That thereafter the 
said Maude V. Darden conveyed said lot to I. B. 
Reuben and others. [PI. Ex. 38; Rep. Tr. p. 
203, line 10.] I. B. Reuben and others, are the 
original trustors who created the subdivision 
trust herein. I. B. Reuben and others conveyed



the said Lot 500 of the tract to Henry D. Gilbert 
and Tillie Gilbert, as joint tenants. [Rep. Tr. 
p. 203, lines 18 to 24.] The said Henry D. 
Gilbert is one o f the four original settlors of the 
trust. [PI. Ex. 39.] That thereafter in 1935 
and subsequent to the modification heretofore and 
hereafter mentioned, the said Henry D. Gilbert, 
settlor, and his wife conveyed the said lot to 
Henry Laws, Anna Laws and Pauletta Laws, 
some of the appellants herein. [PI. Ex. No. 40; 
Rep. Tr. p. 204, lines 3 to 9.]

The power of the grantor to revoke or modify 
an instrument where the power is reserved is set 
forth in Section 1229 of the California Civil 
Code, which provides:

“ Where the power to revoke or modify an 
instrument affecting the title to, or the en­
joyment of, an estate in real property, is re­
served to the grantor, or given to any other 
person, a subsequent grant of, or charge 
upon the estate, by the person having the 
power o f revocation, in favor of an en­
cumbrancer for value, operates as a revoca­
tion of the original instrument to the extent 
of the power in favor o f such purchaser or 
encumbrancer.”

In the leading case of Tenant v. John Tenant 
Memorial Home, 167 Cal. at page 575, the court 
said:

“ Each of these sections is based on the 
assumption that the reservation mentioned



— 47—

would be valid if made. Furthermore, they 
entirely remove the foundation upon which 
these reservations, when inserted in deeds of 
feoffment, were held to be void, that is to 
prevent the danger of secret transfers, to the 
detriment of the lord o f the manor, or sub­
sequent purchasers or encumbrancers. There 
is now no lord o f the manor, and the sec­
tions provide a complete protection to subse­
quent purchasers or encumbrancers for 
value. Furthermore, the effect of the de­
cisions of this court is that such reservations 
are valid.”

It is of course a rule well settled in California, 
that the deed is the final and exclusive memorial 
of the intention and right of the parties. ( Mar­
tin v. Holm, 197 Cal. 733; Werner v. Graham, 
supra; Berryman v. Hotel Savoy Co., 160 Cal. 
559; McBride v. Freeman, supra.) Furthermore, 
any provision o f an instrument creating or 
claimed to create such a servitude will be strictly 
construed, any doubt being resolved in favor of 
the free use of the land. ( Werner v. Graham, 
181 Cal. 174.)

It is the plaintiffs’ position and the court 
found, that the restrictions are imposed as a servi­
tude in favor of each and every lot in the tract. 
But the restrictions were placed on the tract 
pursuant to a general scheme or plan of building 
up the tract. The subdivision trustee or grantor 
reserved the right to modify the restrictions at



— 48—

its discretion, and the plaintiffs had notice. When 
the grantor reconveyed the unsold lots without 
such restrictions and the trustors likewise sold 
the lots, one to one of the appellants in the case 
at bar, the right to enforce the restrictions was 
waived. ( Brown v. Wrightman, 5 Cal. App. 
391; Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal. 
App. 462; Los Angeles, etc. Land Co. v. Marr, 
187 Cal. 126; Wcdmn-Aldahl Co. v. Miller, 18 
Cal. App. (2d) 745.) It is submitted that the 
grantor and trustors not only modified the re­
strictions by their acts and conduct but aban­
doned the plan.

In the case of Wednm-Aldahl Co. v. Miller. 18 
Cal. App. (2d) the court said, at page 753:

“ A  grantor may waive the right to en­
force a restriction with respect to the use 
o f land by his acts and conduct and thus 
estop himself from asserting its future 
validity. . . .”

“ In the case o f restrictions imposed in 
pursuance o f a general plan, that the 
originator of the plan, the common grantor, 
acquiesces in, that is, fails to take legal action 
to prevent, substantial infringements of the 
plan by some of his grantees, has been re­
garded as showing an abandonment by him 
of the plan, precluding him from subse­
quently enforcing the restriction as against 
others.”



49-

In the case at bar the grantor did nothing 
about the alleged violation of the restrictions by 
appellants or by the settlors of the trust, namely, 
I. B. Reuben, Henry Gilbert, Solomon Gross, and 
Joseph Moent, and reconveyed unsold lots back to 
the trustors, free of the restrictions. In other 
words, although the grantor by the terms of the 
Building Restrictions, imposed restrictions on 
some of the lots conveyed to some of the 
grantees, it was in no way bound by the re­
strictions.

We, therefore, respectfully submit that the 
court erred in finding that a servitude was im­
posed by the restrictions in favor o f each and 
every lot and that the restrictions are for the 
benefit of each owner o f land in the tract, for 
the reason that it affirmatively appears that the 
grantor on his part never did covenant to make 
similar conveyances to appellants’ grantors, or to 
plaintiffs’ grantors, or to any o f the other 
grantees or owners o f lots in said Tract. No 
equitable easement was created.

In the leading case o f Wing v. Forest Lawn 
Cemetery Association, 15 Cal. (2d) 472, the 
court said at page 480:

“Werner v. Graham, 181 Cal. 174, 183 
Pac. 945, has oft been cited as the leading 
case in this state defining the manner in 
which an equitable servitude may be estab­
lished. The case makes it requisite not



— 50—

only that the deed contain (1 ) a proper 
expression o f intent to create an equitable 
easement; that is, reference to a common 
plan o f restriction or indication o f an agree­
ment between the grantor and grantee that 
the conveyed lot be taken subject to some 
such plan, but also (2 ) ‘some designation or 
description o f what is an essential factor, 
namely, the dominant tenement.’

“ Measured by these standards it can 
scarcely be said that an equitable easement 
was created by plaintiff’s deed. Certainly, 
there is no description o f a dominant tene­
ment which is to be benefited by the restric­
tion placed upon the property by the grantee. 
The importance of describing with certainty 
the property to be affected by a restrictive 
easement has been commented on by Pro­
fessor William Edward Burby in 10 So. 
Cal. Law Rev. 281, at Page 289, note 21, 
— thusly:

“  ‘The desirability of adhering to the rule 
announced in Wagner v. Hann [38 Cal. 
I l l ,  99 Am. Dec. 354] (cited in Werner 
v. Graham, supra), in connection with the 
creation of equitable easements, seems ap­
parent. There should be some written evi­
dence either in the form o f a plat or other­
wise, delineating or pointing out the extent 
o f the property affected by the restrictions. 
A more extensive area is usually involved 
in the case o f equitable easements than is 
the case in the creation o f legally enforce-



— 5 1 —

able easements. A s a matter o f policy, the 
understanding o f the parties shoidd be defi­
nite and clear, and should not be left to 
mere conjecture. Property described in the 
deed creating the equitable easements, and 
no other should be affected thereby’ ” (ital­
ics ours).

Although the grantor by the 
terms of said deed imposed numerous re­
strictions on the lots conveyed to the 
grantee, it in nowise bound itself to impose 
restrictions on any which may have been 
retained by it, or to convey other property 
which it may have held subject to the same 
or similar restrictions or to do anything in 
favor of the property o f the grantee.”

“ A  similar situation was presented in 
the case o f Kuhn v. Saum, 316 Mo. 805 
[291 S. W . 104, at p. 105] wherein the 
Supreme Court o f Missouri, said:

“  ‘ . . . And if the grantee could not
compel his grantor to observe the restric­
tions, he could not compel a subsequent 
grantee to do so. Beattie v. Howell, 98 
N. J. Eq. 163, 129 A. 822. . . .’

. . Therefore, it cannot be said that 
by the mere imposition o f restrictions on 
the lands of the grantee, the grantor im­
pliedly placed the same restrictions on lands 
retained by it.”

“ It is true that the deed stated that the 
restrictions on lands o f the grantee might



-52—

be enforced against the land o f the grantee 
by other owners o f burial space in 
Memorial Park, but said statement did not 
have the effect o f creating a reciprocal 
negative easement.”

“ And further, at page 482, quoting from 
the case o f Moe v. Gier, 116 Cal. App. 403, 
the Court said:

. . To create an equitable servi­
tude in the grant of lands in a large 
area it is essential that there must be a 
general scheme of restrictions sufficiently 
uniform in character to indicate unmis­
takably a designated and adopted plan 
throughout common to all purchasers of 
lots. The restrictions must not only appear 
in one deed, but in all the deeds, and must 
expressly declare that such restrictions are 
for the benefit o f and run with all other 
lots in the designated area. In other words, 
the restrictions must be for the mutual 
benefit o f all parcel owners and each lot 
imposed with a servitude for the benefit 
o f each and every lot.’ ”

Appellants urge that no equitable servitude 
was created in the absence o f a designation of 
a dominant tenement or tenements, hence there 
is no basis for holding that said restrictions 
are valid and enforceable and that appellants 
have violated any restrictions.



— 5 3 —

A Judicial Decree of a State Court Enforcing, 
Against Members of the Negro Race, Re­
strictive Residence Covenants, Offends 
the Equal Protection Clause of the Four­
teenth Amendment to the United States 
and Article One, Sections One and Twen­
ty-one of the Constitution of the State of 
California.

The Fourteenth Amendment of the United 
States Constitution, prohibits a state from de­
priving a person o f property without due process 
of law. It would seem, therefore, that a decree 
by a state court upholding a provision o f re­
strictions that certain premises are not to be 
sold, leased, used or occupied by persons not of 
the Caucasian race as valid and enforceable 
and permanently enjoining and restraining ap­
pellants who are not of the Caucasian race from 
occupying or using any portion of their prop­
erty in the premises, the state is lending its aid 
by the enforcement of such a provision depriv­
ing persons of their property.

(1) Judicial A ction Constitutes “ State” 
A ction W ith in  the M eaning of the 
Fourteenth A mendment.

This seems to be definitely determined by 
Mooney v. Holohan (1934), 294 U. S. 103, 112. 
“ That Amendment”  (the Fourteenth), said the 
court, “ governs any action of a state ‘whether 
through its legislature, through its courts, or 
through its executive or administrative offices’ .”



■ 5 4 -

In the most recent consideration of the sub­
ject, the U. S. Supreme Court, in Bridges v. 
California, 86 L. Ed. (Adv. Op.) 179, Dec. 8, 
1941, nullified action by the Superior Court of 
the State of California on the ground that it 
abridged freedom of speech, and hence federal 
due process, under the Fourteenth Amendment. 
Such action by the court would have been im­
possible had the court not construed the word 
“ state”  in the Fourteenth Amendment as in­
cluding the Superior Court o f this County as 
an agency of the state within the meaning of 
“ state” in the Fourteenth Amendment.

(a ) The Broadening Scope o f the Fourteenth 
Amendment as to What Constitutes State 
Action.

The word “ state”  in the Fourteenth Amend­
ment includes not only action by a state legis­
lature, but action by municipalities as well. Mu­
nicipalities are deemed to be agents of the state 
within the meaning of the Fourteenth Amend­
ment.

In Hague v. C. I. O., 307 U. S. 496; Lovell 
v. Griffin, 303 U. S. 444; and Schneider v. 
State, 308 U. S. 147, municipal ordinances were 
held void because o f infringement o f the right 
o f freedom of speech; and thus were held to 
constitute state action. (In the last the above 
three cases the Los Angeles Handbill Ordinance



— 55—

was held invalid.) Similarly in another Califor­
nia case, in Hamilton v. Regents, 293 U. S. 245, 
a resolution by the Board of Regents of the 
University of California was held to constitute 
state action. To the same effect is Missouri ex  
rel. Gaines v. Canada, 305 U. S. 337.

(b ) The Broadening Protection of Negroes 
From Discrimination Because o f Race or 
Color:

( i)  Selection of Grand and Trial Juries. 
Norris v. Alabama, 294 U. S. 594; Pierre 
v. Louisiana, 306 U. S. 354; Smith v. 
Texas, 311 U. S. 129.

(ii) The right to vote irrespective of 
color or race. Nixon v. Herndon, 273 U. 
S. 536, 541.

(iii) Attendance at a state university ir­
respective of race. Missouri ex rel. Gaines 
v. Canada, 305 U. S. 337.

(iv ) Equality of accommodations in 
transportation. Mitchell v. U. S., 313 U. 
S. 80.

(v ) Freedom from Peonage. Taylor v. 
Georgia. 86 L. Ed. (Ad. Op.) 371.

(v i) The Fourteenth Amendment was de­
signed particularly to protect the Negro 
from every form of discrimination because 
of color or race.



— 56—

The law is summarized in Buchanan v. 
Worley, 245 U. S. 60, 77, thus:

“ It (the Fourteenth Amendment) was 
designed to assure to the colored race the 
enjoyment of all the civil rights that under 
the law are enjoyed by white persons, and 
to give to that race the protection of the 
general government, in that enjoyment, 
wherever it should be denied by the states.

yy

“ It ordains that no state shall deprive 
any person o f life, liberty or property with­
out due process o f law, or deny to any per­
son within its jurisdiction the equal protec­
tion o f the laws.

“ What is this but declaring that the law 
in the states shall be the same for the black 
as for the white; and that all persons, 
whether colored or white, shall stand equal 
before the laws of the states, and, in re­
gard to the colored race, for whose pro­
tection the amendment was primarily de­
signed, that no discrimination shall be made 
against them by law because o f their color.

“ The Fourteenth Amendment makes no 
attempt to enumerate the rights it is de­
signed to protect. It speaks in general 
terms, and those are as comprehensive as 
possible. Its language is prohibitory; but 
every prohibition implies the existence of 
rights and immunities, prominent among 
which is an immunity from inequality of



— 57—

legal protection, either for life, liberty or 
property. Any state action which denies 
this immunity to a colored man is in con­
flict with the Constitution.”

“ Again this court in E x parte Virgina, 
100 U. S. 339, 347, said:

“ Whoever, by virtue o f public position 
under a state government, deprives another 
of property, life or liberty without due 
process o f law, or denies or takes away the 
equal protection of the law, violates the 
constitutional inhibition, and as he acts in 
the name of the state, and is clothed with 
the state’s power, his act is that o f the 
state”

Certainly a judicial decree which enforces dis­
crimination in the establishment of residence be­
cause of race constitutes action “ by virtue of 
public position” , and hence the exercise of such 
judicial power constitutes the act o f the state 
within the meaning and prohibitions o f the 
comprehensive terms of the Fourteenth Amend­
ment. Los Angeles Investment Co. v. Garry 
(1919), 180 Cal. 680, and Corrigan v. Buckley 
(1925), 271 U. S. 323, do not foreclose the 
issue adversely to the defendants.

Thus, in Hansberry v. Lee, 311 U. S. 32, 85 
L. Ed. 22, the court by its failure to construe 
the claim of the denial of equal protection of 
the laws by restrictive residential covenants based



■58—

on race, indicated that the issue was still an 
open one so far as that court was concerned.

The court rules in favor o f the Negroes on 
an issue involving lack o f notice in a class suit.

The examination o f the petitioner’s briefs, as 
outlined in the United States Supreme Court 
reports at page 35, and more fully in the Law­
yers Edition Reports at page 24, discloses that 
the precise contention made in the instant case 
was made in behalf o f the Negroes, in that 
case. An examination of the decision of the 
court discloses that the court avoided passing 
upon that issue.

Had the court considered Buchanan v. Worley 
or Los Angeles Investment Company v. Garry, 
as conclusive, it would have said so.

Russell v. Wallace, 30 Fed. (2d) 981; Cornish 
v. O’Donoghue, 30 Fed. 298; and Grady v. 
Garland, 89 Fed. (2d) 817, all decisions by the 
District Court of Appeal of the District of 
Columbia are neither binding upon this court 
nor precisely in point; nor is the denial of 
certiorari in each o f the cases by the United 
States Supreme Court.

The Supreme Court of the United States has 
declared on numerous occasions that the denial 
of certiorari is not an approval or an affirmance 
of an opinion; it simply is a determination by 
that court that it will not hear that case; it is



- 5 9 -

no indication that that court will not hear a 
similar case at another time.

Moreover, in each of the cases the question of 
“ equal protection of the laws” was not an issue; 
the District of Columbia not being a state, is 
not subject to the Fourteenth Amendment. The 
Fifth Amendment to the United States Consti­
tution which contains guarantees against federal 
action, does not contain an assurance of equal 
protection.

For a comprehensive discussion as to the dif­
ference between the guarantees o f the due process 
clause and the equal protection clause, we refer 
to Trnax v. Corrigan, 257 U. S. 312.

That the equal protection clause is designed 
particularly to enjoin any kind o f state dis­
criminating because of race or color, is disclosed 
by the Trnax case, in which the landmark de­
cision Yick W o v. Hopkins, 118 U. S. 356, 369, 
is approved by the court, the court quoting:

“ These provisions (o f  the Fourteenth 
Amendment) are universal in their appli­
cation, to all persons within the territorial 
jurisdiction without regard to any differ­
ences of race, of color, or of nationality; 
and the equal protection o f the laws is a 
pledge o f the protection of equal laws.”

In the early case of Gandolfo v. Hartman, 
49 Fed. 181 (1892), restrictive covenants as



— 6 0 —

applied to the Chinese race were held to violate 
the Fourteenth Amendment, the court declaring:

“ It would be a very narrow construction 
of the constitutional amendment (Four­
teenth) in question and the decisions based 
on it, and a very restricted application of 
the broad principle upon which both the 
amendment and the decisions proceed, to 
hold that while state and municipal legis­
latures are forbidden to discriminate against 
the Chinese in their legislation, a citizen of 
the state may lawfully do so by contract, 
which the courts may enforce . . . Any
result inhibited by the Constitution can no 
more be accomplished by contracts of indi­
vidual citizens than by legislation, and the 
court should no more enforce the one than 
the other.”

(c ) The Growing Judicial Emphasis Upon 
Personal Rights as Distinguished From 
Property or Contract Rights.

In recent years the Supreme Court has recog­
nized that constitutional values like all other 
values, when in conflict, must be reconciled 
where possible; in the process o f reconciliation, 
each right must be allocated its proper place, 
some being recognized however, as superior to 
others.

Thus, in Minersville School District v. Gobitis, 
310 U. S. 586, 595, the court recognized that



— 6 1 —

there was a “ hierarchy of legal values,” declar­
ing that, by way of example, “ religious freedom 
was inferior to none” in that hierarchy. Re­
cently the highest court in the land has placed 
the great personal liberties, like freedom of 
speech and o f the press, and freedom from dis­
crimination because of color or race, as first in 
that hierarchy. Justice Cardozo, speaking for 
the court in Palko v. Connecticut, 302 U. S. 219, 
223, enunciated the “ rationalizing principle” 
which brings order out of what would otherwise 
appear to be judicial inconsistency and chaos.

Said Cardozo:
“ W e reach a different plane of social 

and moral values when we pass to the 
privileges and immunities that have been 
taken over from the earlier articles of the 
Federal Bill o f Rights, and brought within 
the Fourteenth Amendment by a process of 
absorption. These in their origin were ef­
fective against the Federal Government 
alone. I f the Fourteenth Amendment has 
absorbed them, the process of absorption 
has had its source in the belief that neither 
liberty nor justice would exist if they were 
sacrificed. This is true, for illustration, 
of freedom of thought and speech. O f that 
freedom one may say that it is the matrix, 
the indispensable condition, of nearly every 
other form of freedom.”



— 62—

That contract and property rights may, un­
der special circumstance, be required to take a 
place, somewhere else than at the head o f the 
table, is seen from the recent United States Su­
preme Court decisions.

Thus, in West Coast Hotel Co. v. Parrish, 
300 U. S. 379, 391, in discussing freedom of 
contract the court, speaking Chief Justice 
Hughes, declared:

“ What is this freedom? The Constitu­
tion does not speak o f freedom of contract. 
It speaks o f liberty and prohibits the 
deprivation of liberty without due process 
of law. In prohibiting that deprivation the 
Constitution does not recognize an absolute 
and uncontrollable liberty. Liberty in each 
o f its phases has its history and connota­
tion. But the liberty safeguarded is liberty 
in a social organization which requires the 
protection o f law against the evils which 
menace the health, safety, morals and wel­
fare o f the people.

“ . . . The essential limitation of lib­
erty in general governs freedom of con­
tract in particular.”

The court then quotes from Allgeyer v. 
Louisiana, 165 U. S. 578:

“ . . . freedom of contract is a quali­
fied and not an absolute right. There is 
no absolute freedom to do as one wills, or 
to contract as one chooses.”



Once again in Home Building and Loan A s­
sociation v. Blaisdell, 290 U. S. 398, 435, the 
court in upholding interference with enforce­
ment of mortgage foreclosure contracts, said:

“ The policy o f protecting contracts 
against impairment pre-supposes the main­
tenance of a government by virtue of which 
contractual relations are worthwhile— a gov­
ernment which retains adequate authority to 
secure peace and good order of society.”

The court then quotes with approval (page 
443) Chief Justice Marshall:

“ W e must never forget that it is a con­
stitution we are expounding (McCulloch v; 
Maryland, 4 Wheat., 316, 407) a consti­
tution intended to endure for ages to come 
and consequently to be adapted to the 
various crises of human affairs.”

In other words, the authority of courts of 
equity to impinge upon the alleged absolute 
right of contract or of property, in the inter­
ests of the public good, is on a par with the same 
authority of other departments o f the state, 
c. g., the legislatures, so to do.



Enforcement of Restrictive Covenants Against 
the Negro Race, Because of Race or 
Color, Is Against the Present Public Pol­
icy of the Nation, and of This State.

(a) National U nity  U rged in the 
N ational Defense Program.

Our national policy with respect to racial dis­
crimination has been formally and officially ex­
pressed by the government in Executive Order 
No. 8802, dated June 25, 1941, which reads in 
part:

“ Reaffirming Policy of Full Participation 
in the Defense Program by all persons, re­
gardless of Race, Creed, Color, or National 
Origin, and Directing Certain Action in 
Furtherance of said Policy.”

“ Whereas, it is the policy o f the United 
States to encourage full participation in 
the National Defense Program by all citi­
zens o f the United States, regardless of 
race, creed, color or national origin, in the 
firm belief that the democratic way of life 
within the nation can be defended success­
fully only with the help and support of all 
groups within its border.”

Pursuant to that policy, in that Executive Or­
der, the President of the United States has de­
creed that there shall be no discrimination in 
employment in defense industries because o f race, 
creed, color or national origin.



— 65—

This national policy, expressed by a Demo­
cratic President, has been best expounded by 
Wendell Willkie in his address in Los Angeles 
on July 20, 1942, protested against “ imperialism” 
at home expressed through racial discrimination 
as interfering with our war effort. He disclosed 
the need for military unity on the part o f all of 
the peoples o f the United Nations, irrespective 
of race or color, declaring, among other things:

. . But we are learning in this war
that it is not racial classifications nor 
ethnological considerations which bind men 
together. It is shared concepts and kindred 
objectives.

“ Racial problems in the United States 
must take several steps toward solution as a 
result o f the war, and our Negro citizens 
who make proportionate sacrifice and ef­
forts toward the winning of the war must 
win proportionate reward.”

(b) Restrictions Because of Race, Creed or 
Color A re Inconsistent W ith the Pub­
lic Policy of T his State.

Although the legislature can authorize the 
segregation of the races, it has not done so. It 
has, however, by enactment compelled a reor­
ganization of the equality o f citizens in the right 
to the peculiar services of agencies for the ac­
commodation and entertainment of the public.



Section 51 of the Civil Code provides as 
follows:

“ All citizens within the jurisdiction of 
the state are entitled to the full and equal 
accommodations, advantages, facilities and 
privileges of inns, restaurants, hotels, eat­
ing houses, places where ice-cream or soft 
drinks o f any kind are sold for consumption 
on the premises, barber shops, bath houses, 
theatres, skating rinks, public accommoda­
tion or amusement, subject only to the con­
ditions and limitations established by law, 
and applicable alike to all citizens.”

Whoever makes any discrimination, distinction 
or restrictions on account of color or race in re­
spect to the admission of any citizen or his treat­
ment in any of the agencies enumerated in Sec­
tion 51 of the Civil Code is liable in damages 
to the party aggrieved in an amount not less 
than one hundred dollars. ( Civil Code, Sec­
tion 52.)

There is no doubt o f the constitutionality of 
the provisions and of the sound public policy of 
such legislation.

Mandamus is the proper remedy too for un­
lawful discrimination of a municipality in re­
fusing to admit Negroes to a swimming pool



— 67—

owned and operated by the municipality. ( Stone 
v. Board o f Directors o f Pasadena, 47 Cal. App. 
(2d) 851.) To compel the trustees of a school 
district and a teacher to admit an Indian child 
as a pupil, Piper v. Big Pine School District, 
193 Cal. 664. To compel the admission of a 
Negro to a school, Ward v. Flood, 48 Cal. 36.

In Stone v. Board o f Directors o f Pasadena, 
supra, the court at page 856 stated the rule held 
in Kern v. Commissioners o f City o f Newton, 
147 Kan. 471:

. . Deprivation o f the privilege of
access to municipal recreation grounds es­
tablished or maintained at the general tax­
payers expense, on account o f race or color, 
is legally and traditionally offensive to the 
history of this state, and although this 
court has repeatedly upheld statutes which 
sanction reasonable segregation o f the racial 
stocks of this state, White and Colored, we 
have steadfastly held to our oft-repeated 
rule that the legislature alone can authorize 
such segregation; as in the many school 
cases cited above.”

Our state policy with respect to racial dis­
crimination is well expressed in the leading case 
o f Sacramento 0 . etc. Home v. Chambers, 25 
Cal. App. 536, where the question involved



- 6 8 -

Article I, Section 21 of our Constitution for a 
Writ of Mandamus to secure the payment o f a 
claim for support of a minor orphan whose par­
ents were aliens and non-residents. Justice 
Burnett, speaking for the court, said at page 
541:

“ Mentally, morally and physically, no 
doubt, the sins and infirmities o f the parents 
are often visited upon their descendant, but 
in the realm of civil and political rights, 
and privileges no such principle can be rec­
ognized or tolerated. To affirm the proposi­
tion contended for by respondents, that one 
citizen is, and another is not entitled to this 
privilege in consequence o f the difference in 
citizenship and residence of the parents, is 
to deny all efficacy to the constitutional man­
date that privileges must be granted to 
all citizens upon all terms.”

(c) T he Right to A cquire and Possess 
Property Is Guaranteed by Our Cali­
fornia Constitution.

Article I, Section 1 o f the California Consti­
tution is as follows:

“ All men are by nature free and inde­
pendent, and have certain inalienable rights, 
among which are those of enjoying and de­
fending life and liberty, acquiring, possess­
ing and protecting property; and pursuing 
and obtaining safety and happiness (Con­
stitution o f 1849, Art. I, Sec. II). (Italics 
ours.)



- 6 9 -

Enforcement o f restrictions as in the case at 
bar against appellants who are Negroes for 
private consideration is a denial to them of one 
of the primary objects of government, guaran­
teed by the constitution. A  man is not to be de­
prived of his property or of his property rights 
for any private consideration. ( E x parte Loren- 
zen, 128 Cal. 431.)

The only immunities which can be justly 
claimed by one portion o f society from another 
is that each individual is required to use his own 
as not to inflict injury upon his neighbor.

Moreover, the right to use and enjoy property 
by the owner is zealously guarded in this state. 
( Simpson v. City o f Los Angeles, 4 Cal. (2d) 
60; 27 Cal. App. (2d) 293.)

Conclusion.

The strict letter of the law favors the position 
of appellants: the uncertainties of the covenant 
should be strictly construed against those seeking 
to enforce it with all doubt resolved in favor of 
free use of the land; the facile findings o f the 
trial court that change in the character of the 
community was insufficient to stay the hand of 
equity and that respondents have not been guilty 
of laches in prosecution of their claim are un­
supported by the evidence; the refusal to follow 
the plain holding that an unlimited restraint on 
use and occupancy are void is contrary to law;



70—

the court acted beyond its jurisdiction in refusal 
to require the presence of indispensable parties 
to a final termination of the controversy; the 
appellant Laws undoubtedly took title freed of 
any burden of the covenant and finally the power 
of a court of equity to exert what in the last 
analysis is the power of the state to accomplish 
residential segregation, when that power is de­
nied to the legislative and administrative 
branches of government, requires careful re­
examination in the light of modern conditions.

But it is well for all concerned to remember 
above all that this is a case in which the aid of 
equity is invoked. Respondents seek to oust 
appellants from their homes— homes they have 
purchased and built— solely on the accidental dif­
ference of color between American citizens. It 
is difficult to conceive a situation in which equity 
ought to tread more carefully. A  fair consid­
eration of all the evidence demonstrates that 
appellants seek in good faith only to occupy 
property which has little or no value to those 
who seek to oust them and that appellant home 
owners seek to live in property long spurned as 
residential sites by their now unfriendly neigh­
bors, spurned perhaps because the homes face 
other homes occupied by other Negroes. If re­
spondents prevail, their victory is a barren one;



— 71

they will suffer no damage if appellants remain 
in occupancy of lots 498 and 500; they will reap 
no benefits if appellants are dispossessed. The 
attitude they exhibit is well defined by Wendell 
Willkie in his best selling book, One W orld:

“ The attitude of the white citizens of this 
country has undeniably had some of the un­
lovely and tragic characteristics of an alien 
imperialism— a smug racial superiority, a 
willingness to exploit an unprotected people.”

Never was there a more unfortunate time than 
this for the display of that attitude.

Census statistics, of which this court can take 
judicial notice, show that the Negro population 
of Los Angeles, city and county, has more than 
tripled since this covenant was conceived in 1923. 
That population increase has brougljt inevitable 
expansion of the Negro community; people must 
live somewhere and surely this court will not 
stake out an uninhabitable area in a rapidly 
growing city to gratify the whim of those who 
seek to enforce a barren right. This court can­
not shut its eyes to the broad question of public 
policy involved here nor by invoking over-techni­
cal rules of property and become party to the 
social ills that flow from overcrowding and lack 
of adequate housing facilities for those who seek



— 72—

only to occupy their own homes. As the court 
well observes in Lctteau v. Ellis, supra, at page 
589:

“ A  principle o f broad public policy has 
intervened to the extent that modern prog­
ress is deemed to necessitate a sacrifice of 
many former claimed individual rights. The 
only obstacle met has been the rule of prop­
erty or as termed the disinclination to dis­
turb vested property rights. To some ex­
tent this too has yielded in the sense that 
many rights formerly labeled as property 
rights by a process of academic relations 
are now considered merely personal and 
have been subjected to the common good.”

spectfulh jnjitte

T homas L. jk . f

^  Horen' M ilSeI , Q-J —

Attorneys for Appellants.









Received copy of the within for the judge who
tried the case this...... .......... ,..............day of May,
A. D. 1943.

J. F. M oroney, County Clerk. 

By................. ...........................Deputy.

Service o f the within and receipt of a copy
thereof is hereby admitted this.................... day of
May, A. D. 1943.



^  *.V<\H  1 _

BRIEF AND APPENDIX FOR APPELLANTS

I n  T h e

Initpfr t̂atpa (tart of Appeals 
for tl)p liatrirt nf dalambta

October Term, 1941

No. 8154

Frederick F. Hundley ancl Mary G. Hundley, 
Appellants

v.

Rebecca Gorewitz, Paul W. Bogikes and Marton 0.
Bogikes,

Appellees.

Appeal from the United States District Court, of the 
District of Columbia.

BRIEF FOR APPELLANTS

Spottswood Robinson, J r . 

Of Counsel.

Charles H. Houston 
615 F Street Northwest 

Attorney for Appellants.

Printed by Law Reporter Printing Co., 518 5th St., Wash., D. C.





INDEX TO BRIEF

Subject Index
Page

Jurisdictional Statement_______________  _________  1
Statement of the case _______________________________  2

Constitution and Statutes involved____________________ 7
Statement of points__________________________________  7
Summary of the argument____________________________  8
Argument ___________________________________________  9

I The Court erred in holding that the covenant was
enforceable against appellants in favor of ap­
pellees as subsequent grantees__________________  9

A. The record negatives the existence of any
neighborhood scheme of development or 
comprehensive building plan which the 
covenant was designed to protect________  9

B. The covenant in this case constitutes an 
undue and unlawful restraint on alienation 15

C. The covenant was extinguished when title
vested in the United States, or its alter ego, 
the Home Owners Loan Corporation_____  24

D. Recital of the covenant in the deed from
Holmes to the Hundleys could not revive 
the covenant which had been extinguished 
by the previous conveyances without 
notice___________________________________  36

II The Court erred in ordering appellants to re­
move from the property because the covenant does 
not prohibit the occupation and possession of the 
property by a Negro _____________    37

III The Court erred to the material prejudice of
appellants in ___________________________________  38

A. Excluding the evidence proffered as to the
economic and social laws controlling the 
cycle of residential use of real estate_____  38

B. Excluding the evidence whether appellee
Bogikes Avould remain in her house if the 
Fleets remained in theirs_________________ 40



11 Index Continued
Page

C. Excluding the evidence regarding Negroes 
being able to and actually crossing the color 
line because of proscriptions on them be­
cause of race________________~____________40

IV Enforcement of the covenant by the court is gov­
ernmental action and constitutes a taking of 
appellants’ property without due process of law 
contrary to the Fifth Amendment to the Constitu­
tion of the United States________________________  41

V The injunction is futile because the object of the
covenant cannot be attained_____________________  42

Conclusion ___________________________________________ 44

Cases Cited

Adams v. H. 0. L. C., 107 F. 2d 139 (1939)______________  28
Almogardo Imp. Co. v. Hennessee, 40 N. M. 162, 56 P. 2d

1127 (1930)____________    30
American Federation v. Swing, 312 U. S. 321, 85 L. ed.

855 (1941)_________________________________________  42
Ashwander v. Tennessee Valley Authoritv, 297 U. S. 288,

338, — L. ed. — (1936)______________ ...______________  34
Atlanta Nat. Bldg. & Loan Ass’n v. Gilmer, 128 F. 293,

298 (1904) __    30
Buchanan v. Alexander, 4 How. 20,11 L. ed. 857 (1846) 33
Buchanan v. Warley, 245 U. S. 60, 62 L. ed. 149, 38 S. Ct.

16 (1917) __________________    18
Caron v. Margolin, 128 Me. 340, 147 A. 419 (1929) 12
Central Market v. King, 132 Neb. 380, 272 N. W. 244

(1937)          29
Clallam Countv v. U. S., 263 IT. S. 341 (1923)_____  28, 32
Comm. v. Rouse, 163 Va. 841,178 S. E. 37, 39 (1935).... 25, 26 
Cornish v. O’Donoghue, 58 App. D. C. 359, 30 F. 2d 983

(1929) _______________ ____________ ,________________ 16
Corrigan v. Bucklev, 55 App. D. C. 30, 299 F. 899 (1924) 

aff’d 271 IT. S. 323, 70 L. ed. 969, 46 S. Ct. 521 (1926) 18
Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676 (1880)____ 42
Gorewitz v. Preston, Civil Action No. 10551___  _____ 12
Grady v. Garland, 67 App. D. C. 73, 89 F. 2d 817

(1937)___________________________________  10, 11, 24, 39
Graves v. New York, 306 IT. S. 466, 477, 486 (1938)_____ 25
Hefner v. Northwestern Mutual Life Ins. Co., 123 U. S. 

747, 751, —  L. ed. — (1889)_________________________  30



Index Continued iii 
Page

Heiner v. Donnan, 285 U. S. 312 (1932)_______________  41
Helvering v. Gerhardt, 304 U. S. 405 (1938)____________  28
Herb v. Gerstein, 41 F. Supp. 634, 635 (D. C., Dist. Col.,

1941) ______________________________________________ 37
Hill v. Williams, 104 Md. 595, 65 A. 413 (1906)_________  30
H. 0. L. C. v. Anderson, — Kan. — , 64 P. 2d 14 (1937) ... 27 
H. 0. L. C. v. Barone, 164 Misc. 187, 298 N. Y. S. 531

(1937) --------------------------------------------------------------------  27
H.O.L.C. v. Grundy, 122 N.J.L. 301, 4 A. 2d 784 (1939) 28,33 
H. 0. L. C. v. Stookey, 59 Idaho 267, 81 P. 2d 1096 (1938) 27
Hunt v. Boston, 183 Mass. 303,167 N. E. 244 (1903)_____ 30
Ivenealy v. Chevy Chase Land Co., 63 App. D. C. 327, 72

F. 2d 378 (1934) ____________________________________  10
Leader v. Laflamme, 111 Me. 242, 88 A. 859 (1913)______ 12
Letteau v. Ellis, 10 P. 2d 496 (Ct. App. Cal., 1932)______  43
Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186

P. 596, 9 A. L. R. 115 (1919)__________________________  16
McCulloch v. Maryland, 4 Wheat (17 U. S.) 316 (1819) 28
McNeil v. Gary, 40 App. D. C. 397 (1913)____________ 9, 14
Mandlebaum v. McDonnell, 29 Mich. 78, 18 Am. Rep. 61

(1874) --------------------------------------------------------------------  16
Markowitz v. Berg, 125 N. J. Eq. 56, 4 A. 2d 410 (1939) 29 
Meade v. Dennistone, 173 Md. 295,196 A. 330,114 A. L. R.

1227 (1938) ____________________________________  10, 43
Moses v. Hazen, 63 App. D. C. 104, 68 F. 2d 842 (1934) 31, 35 
Murray v. Hoboken Land & Imp. Co., 18 How. 272 (1856) 42 
Ocean Beach Improvement Co. v. Jenkins, — Fla. —

194 So. 787 (1940) ________________________________  30
Pittman v. H. O. L. C., 308 U. S. 21 (1939)______ 25, 27, 28
Plessy v. Ferguson, 163 II. S. 537, 41 L. ed. 256 (1896)__ 35
Porter v. Barrett, 233 Mich. 373, 206 N. W. 532, 42 A. L. R.

1267 (1925)_____________________________   16
Porter v. Johnson, 115 S. W. 2d 528 (Mo. Sup. Ct., 1938) 10
Prato v. H. O. L. C., 106 F. 2d 128 (1939)_______________  29
Prigg v. Pennsylvania, 16 Pet. 539, 10 L. ed. 1060, 1089

(1842) _____________________________________________  33
Sabin v. H. O. L. C., — Okla. — , 105 P. 2d 245 (1940) 27
Severson v. H. O. L. C., 184 Okla. 496, 88 P. 2d 344 (1939) 27
State v. Lake Shore R. Co., 1 Ohio N. P. 292 (— )________  30
Toothaker v. Pleasant, 288 S. W. 38 (Mo. Sup. Ct., 1926) 9
Torrey v. Wolfes, 56 App. D. C. 4, 6 F. 2d 702 (1925) 15, 16
Twining v. New Jersey, 211 U. S. 78 (1908)____________  41
U. S. v. Certain Lands, 112 F. 622 (— ) _________________ 31



IV Index Continued
Page

U. S. v. Insley, 130 U. S. 263, 32 L. ed. 968 (1899)________  33
U. S. v Iron Works, 31 F. 2d 535 (1929)________________ 33
II. S. v. Kay, 89 F. 2d 19 (1937)_______________________  29
Van Brocklin v. Tennessee, 117 IT. S. 151, 29 L. ed. 845

(1886) _____________________________________________ 33
Walker v. H. 0. L. C., 25 F. Snpp. 589 (1938)______ 26, 28
White v. White, 108 W. Va. 128,150 S. E. 531, 66 A. L. R.

518 (1929)_________________________________________  16
Zinn v. Sidler, 268 Mo. 680,187 S. W. 1172, L. R. A. 1917

A., 455 (1916)______________________________________  37

Statutes and Regulations Cited

United States Constitution
Amendment V _____________________________________  7
Amendment XIII, see. 1_____________________________  7

United States Code
Title 8, sec. 4 2 _________________________________ 7, 32, 35
Title 8, sec. 1461 et seq-----------------------------------------------  7
Title 8, sec. 1461_____________ ...____________________ 7, 24
Title 8, sec. 1462 _____ ______________________________ 25
Title 8, sec. 1463 (a) ________________________________  25
Title 8, sec. 1463 (b) ________________________________  26
Title 8, sec. 1463 (c) ________________________________  26
Title 8, sec. 1463 (j) ________________________________  27
Title 8, sec. 1463 (k) ________________________________  26
Title 28, sec. 225 ____________________________________  2
Title 28, sec. 761 et seq.______________________________ 29

Act May 23,1938, c. — , sec. 4, 52 Stat. 410_____________  27
D. C. Code, 1929, title 11, sec. 2, p. 117_________________  35
D. C. Code, 1940, title 11, sec. 101______________________  2
D. C. Code, 1940, title 11, sec. 301____________________.... 2

Reorganization Plan, No. 1, sec. 402 
U. S. Code, title 5, sec. 133t, note____________________  27

37 Op. Atty. Gen. 241, 244 (1933)______________________  25

The Structure and Growth of Residential Neighborhoods 
in American Cities (F. H. A. Study), p. 68-----------------  17

p. 7 1 _____________________________________________  18
pp. 121-122_____________ ___ __________________ 19, 20



I n  T he

llntipfr States (Eourt of Appeals 
for %  itstrirt of (folumbta

October Term, 1941

No. 8154

F rederick F. Hundley and Mary G. Hundley, 
Appellants

v.
Rebecca Gorewitz, Paul W. Bogikes and Marion 0.

Bogikes,
Appellees.

Appeal from the United States District Court of the 
District of Columbia.

BRIEF FOR APPELLANTS

JURISDICTIONAL STATEMENT

Frederick F. Hundley and Mary G. Hundley, his wife, 
Negro citizens of the United States, appeal from a judg­
ment against them in favor of plaintiffs below (appellees 
here) entered December 1, 1941, by the United States Dis­
trict Court for the District of Columbia, after trial without 
a jury, ordering cancellation of a deed to the Hundleys and 
restraining their occupation of Lot 77 (821) in Square 2866, 
premises 2530 13th Street, Northwest, in the District of



2

Columbia on the ground of violation by the Hundleys of a 
perpetual restrictive covenant prohibiting the sale or trans­
fer of said lot to a Negro. (Appellants’ App.* 19).

The District Court had jurisdiction under D. C. Code 
1940, title 11, section 301.

This Court has jurisdiction to review the judgment under 
D. C. Code 1940, title 11, Section 101, and United States Code 
title 28, section 225.

The pleadings which show the existence of jurisdiction 
are the complaint and answer (App. 1).

STATEMENT OF THE CASE

Appellants Hundleys are Negroes, appellees Gorewitz and 
Bogikes white (App. 13). Appellants January 17, 1941, 
purchased Lot 77 (821) in Square 2866, improved by a two 
story brick residence known as 2530 13th Street, Northwest, 
from a white seller, defendant below Nelson D. Holmes, 
and ever since have occupied the premises as their home 
(App. 2, 68). The deed to the Hundleys recited it was “ sub­
ject to the covenants of record” , to w it:

“ 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 ($2,000.00) which shall be a lien 
against said property.’ ’ (App. 14).

This covenant also appeared in the chain of title to appellee 
Gorewitz’s Lot 78 (822) premises 2528 13th Street and 
appellees Bogikes’ Lot 75, premises 2534 13th Street. 
(A pp. 14).

The history of the covenant is that in 1910 Harry B. 
Willson and Harry Wardman built six houses on six con­
tiguous lots in Square 2866, fronting on the west side of 

,13th Street, Northwest, in the middle of the 2500 block

* Hereafter “ App.” means Appellants’ Appendix.



3

between Clifton and Euclid Streets, Northwest. The six lots 
and houses were

Lot 80 (824), premises 2524 13th Street
Lot 79 (823), premises 2526 13th Street (Preston: Fleet)
Lot 78 (822), premises 2528 13th Street (Gorewitz)
Lot 77 (821), premises 2530 13th Street (Hundley)
Lot 76 (820), premises 2532 13th Street 
Lot 75, premises 2534 13th Street (Bogikes)

(See photograph, Typewritten Transcript, p. 12)
The builders sold and conveyed five of the lots (Nos. 80, 78, 
77, 76 and 75) under deeds containing the restrictive cove­
nant noted. They sold Lot 79 (the present Fleet house) 
without the restrictive covenant. (App. 14).

There are six other houses on the west side of 13th 
Street in the same block; and four single houses and three 
large apartments on the east side of the street (Square 
2865) in the same block. (Typewritten Transcript, p. 16). 
None of these properties on either the west side or the east 
side is burdened with the restrictive covenant. (App. 54, 
et seq.).

In 1928 an attempt was made to have all the owners in 
the block on both sides of the street enter into a 50 year 
restrictive agreement against ownership or occupation of 
any property in the block by Negroes. The agreement con­
tained a proviso

“ that if this indenture be not executed by the owners 
of all the property above described {on both sides of 
the street) and if any of the property, the present owner 
or owners of which do not execute this indenture, be 
hereafter, by the owner or owners thereof, sold, con­
veyed, leased, rented, given to or allowed to be used 
or occupied by a Negro or Negroes . . . the under­
signed and their several successors in ownership and 
their several properties now owned by them shall not 
thereafter be bound by this indenture.”  (Italics and 
matter in parentheses, ours.)



4

All the property owners did not execute the agreement. On 
the west side of the street the owners of Lot 65 (premises 
2520) and Lot 77 (otherwise L ot 821, prem ises 2530, the 
Hundleys’ house) did not sign. On the east side of the 
street in Square 2865 the owners of Lot 167 (premises 2505), 
Lot 168 (premises 2515) and L ot 831 (premises 2523, the 
Savoy  house) did not sign. (Typewritten Transcript, p. 22.)

In 1934 the Home Owners Loan Corporation made a loan 
secured on Lot 77, Square 2866 (the Hundley house), by 
deed in trust. Upon default in payment of the loan the 
property was foreclosed and sold at public auction Novem­
ber 12, 1940; bought in by the Home Owners Loan Corpo­
ration and duly conveyed to it November 13, 1940, by the 
trustees. December 23, 1940, the Home Owners Loan Cor­
poration sold and conveyed the property to the defendant 
below Nelson D. Holmes. The deed in trust securing the 
Home Owners Loan Corporation, the trustees deed to the 
Home Owners Loan Corporatoin, and the Corporaton deed 
to Holmes contained no reference to the covenant. But 
when Holmes conveyed to the Hundleys, he conveyed ‘ ‘ sub­
ject to the covenants of record.”  (App. 72, et seq.)

On or about June 7, 1940, the owner of Lot 79, Square 
2866 (the Fleet house) sold and conveyed to one Preston 
who immediately put the Fleet family, a Negro family, in 
possession, and conveyed the property March 7, 1941, to
Ernest Leroy Fleet. (Typewritten Transcript, p .------ ). On
January 17,1941, as noted above Holmes sold and conveyed 
Lot 77 to the Hundleys who immediately took possession. 
(A pp. 73).

Plaintiffs below Gorewitz and Bogikes and others March 
13,1941, brought suit against Preston and the Fleets in Civil 
Action No. 10,551 to cancel the deed to Ernest Leroy Fleet 
and restrain them from occupying Lot 79 as a violation of 
the 1928 restrictive  agreement. (Typewritten Transcript, 
pp. 25, 17 et seq.) On April 7, 1941, Gorewitz and Bogikes 
brought suit against Holmes and the Hundleys to cancel 
the deed to the Hundleys and restrain them from occupying



5

Lot 77 as a violation of the 1910 restrictive deed covenant. 
(Typewritten Transcript, p.------ ).

On final hearing the suit against the Fleets was dismissed 
July 23, 1941. No appeal was taken. (Typewifitten Tran­
script, pp. 24-25).

At the hearing of the instant case it developed from the 
testimony adduced by plaintiffs below that they did not 
purchase their respective properties relying on the 1910 
covenant, and did not know of the 1910 covenant until they 
were told about the same by Sparrel Wood after both the 
Fleets and the Hundleys were in possession (App. 62); 
that the presence of the Hundleys did not depreciate the 
value of the plaintiffs’ properties or the neighborhood 
(App. 43); that the Home Owners Loan Corporation sold 
Lot (5 to the Bogikes for $8,000.00 when the Corporations’ 
asking price was $9,500.00 (App. 78) and when it had an 
offer from a Negro bishop of $10,000.00 but did not accept 
same because of the covenant against the property (App. 
39, 78); that the Hundleys are respectable people. (App. 
33, 42). The trial court found that the Hundleys had spent 
about $2,300.00 in improving their premises. (App. 15). 
The basic objection to the Hundleys was their race. (App. 
33, 43).

Plaintiffs below testified that they would not have pur­
chased their properties if they had known Lot 79 (the Fleet 
house) was not covenanted. (App. 32, 41). The court ex­
cluded a question to plaintiff Bogikes whether she would 
remain in the neighborhood if the Fleets stayed. (App. 42).

The defendants conceded that they purchased with notice 
of the covenant, relying on the opinion of a real estate agent 
that the covenant was invalid. (App. 74). They further 
proffered evidence to show the cycle of real estate neigh­
borhood development, that this neighborhood was passing 
from a home owners neighborhood to a tenancy neighbor­
hood, that the property was on a main thoroughfare, and 
real estate use along a main thoroughfare changed rapidly, 
and social and economic laws pointed out the inevitability



6

of this property and neighborhood going colored, covenant 
or no covenant, so that to issue the injunction would be 
futile and would not perpetuate the neighborhood as white. 
(App. 65, 66, 83, 84). The court over defendants’ objection 
rejected the evidence. (App. 65, 66, 83, 84).

Defendants then offered evidence showing the rapid 
growth of Negro ownership and occupation in the area 
within the past fifteen years, and offered to show that in 
other neighborhoods where injunctions against Negro own­
ership and occupation had issued, the injunctions had not 
served to prevent the neighborhood from changing from 
white to colored. (App. 84). This evidence the court re­
jected. (App. 84).

Defendants tendered evidence on the futility of the cove­
nant and the proposed injunction as defeating its own ends 
by showing that Preston who purchased the Fleet house 
was a Negro who was mistaken for white (App. 69); that 
plaintiff Gorewitz could not tell white from colored, or vice 
versa (App. 69, 72); that many Negroes were forced to pass 
for white and did so because of the restrictions on them as 
Negroes (App. 69, 71). This evidence the court rejected. 
(App. 69, 71).

Lauren Fleet testified that regardless what happened his 
family intended to remain in possession of their house (Lot 
79). (App. 79).

Subsequent to the hearing of this case hut before judg­
ment was entered, premises 2523 13th Street (Lot 831 in 
Square 2865) November 19, 1941, was sold to a Negro, Ger­
trude Savoy. Appellants attempted to make this a part of 
the record illustrating the operation of the economic and 
social laws operating on the neighborhood by motion for 
leave to supplement their ansAver. (App. 11; Typewritten 
Transcript, p. 115). The court denied the motion. (App. 
13).

On December 1, 1941, the court entered its judgment can­
celling' the deed to the Hundleys arid ordering them to re­
move from the premises by April 1,1942; Avhereupon appel­



7

lants duly noted and prosecuted this appeal. (App. 19).

CONSTITUTION AND STATUTES INVOLVED

Appellants rely on, among other things, the due process 
clause of the Fifth Amendment and Section 1 of the Thir­
teenth Amendment to the United States Constitution; the 
United States Code, title 8, section 42; and title 12, sec­
tions 1461 and following. They are set out in the Appendix.

STATEMENT OF POINTS

1. The Court erred in holding that the covenant was en­
forceable against appellants.

2. The Court erred in ordering the appellants to remove 
from the premises inasmuch as the covenant does not pro­
hibit occupation or possession of the premises by a Negro.

3. The Court erred in holding that the covenant was not 
extinguished when title to the property was acquired by 
the United States, acting through its instrumentality, the 
Home Owners Loan Corporation.

4. The covenant is an unlawful restraint on alienation.
5. The covenant is against the public policy of the United 

States and not enforceable in a Federal court.

6. The Court erred in excluding testimony as to the cycle 
of change in real estate use and occupation in the neighbor­
hood.

7. The Court erred in excluding the question to plaintiff 
Bogikes whether she would remain in her property if the 
Fleets stayed in theirs.

•8. The Court erred in excluding the evidence offered as 
to the racial identity of Preston, and the indistinguishabil- 
ity of many Negroes from whites and Negroes crossing the 
color line because of proscriptions against their race.



8

9. The Court erred in denying appellants’ motion to sup­
plement their answer.

10. Enforcement of the covenant by the Court consti­
tuted governmental action and deprived appellants of their 
property without due process of law in violation of the 
Fifth Amendment to the United States Constitution.

SUMMARY OF THE ARGUMENT

I. The Court erred in holding that the covenant was 
enforceable against appellants in favor of appellees as sub­
sequent grantees, because

A. The record negatives the existence of any neighbor­
hood scheme of development or comprehensive building 
plan which the covenant was designed to protect.

B. The covenant in this case constitutes an undue and 
unlawful restraint on alienation.

C. The covenant was extinguished when title vested in 
the United States, or its alter ego, the Home Owners Loan 
Corporation.

D. Recital of the covenant in the deed from Holmes to 
the Hundleys could not revive the covenant which had been 
extinguished by the previous conveyances without notice.

11. The Court erred in ordering appellants to remove 
from the property because the covenant does not prohibit 
the occupation and possession of the property by a Negro.

III. The Court erred, to the material prejudice of appel­
lants, in

A. Excluding the evidence proffered as to the eco­
nomic and social laws controlling the cycle of residen­
tial use of real estate.

B. Excluding the evidence whether appellee Bogikes 
would remain in her house if the Fleets remained.



9

C. Excluding the evidence regarding Negroes being 
able to and actually crossing the color line because of 
proscriptions on them because of race.

IV. Enforcement of the covenant by the court is govern­
mental action, and constitutes a taking of appellants’ prop­
erty without due process of law contrary to the Fifth 
Amendment to the Constitution of the United States.

V. The injunction is futile because the object of the 
covenant can not be attained.

ARGUMENT

I

The Court erred in holding that the covenant was enforce­
able against appellants in favor of appellees as subsequent 
grantees, because

A
The record negatives the existence of any neighborhood 

scheme of development or comprehensve building plan 
which the covenant was designed to protect.

Where the covenant is not imposed in furtherance of a 
neighborhood scheme of development or comprehensive 
building plan, the subsequent grantees cannot enforce the 
covenant.

McNeil v. Gary, 40 App. D. C. 397 (1913).
Toothaker v. Pleasant, 288 S. W. 38 (Mo. Sup. Ct., 1926). 

Our argument here does not rest on change of neighbor­
hood but on the proposition that the row of the six Willson 
& Wardman houses in the middle of the 2500 block of 13th 
Street between Clifton and Euclid Streets did not constitute 
a neighborhood nor a comprehensive building scheme. 
(Typewritten Transcript, pp. 12, 16; App. 26).



10

1. In said 2500 block of 13th Street the six Willson & 
Wardman houses are in the middle of the block on the west 
side of the street. On the same west side there is another 
row of houses between them and the corner of Clifton Street, 
and a large boarding house between them and the corner of 
Euclid Street; six other houses on the same side of the 
street, without this covenant or any other legally binding 
restrictive agreement against Negro ownership or occu­
pancy in their chain of title. On the east side of the street 
there are four single houses and three large apartments, 
none of which has this covenant or any other legally binding 
restrictive agreement against Negro ownership or occu­
pancy in its chain of title. There are 19 improved properties 
in the 2500 block of 13th Street, with the six Willson & 
Wardman houses constituting a minority. These six Will- 
son & Wardman houses do not even constitute a segment 
of houses at one of the four corners; but are in the middle 
flanked on both sides and fronted across the street by prop­
erty not subject to the covenant or any binding racial re­
striction. (Typewritten Transcript, p. 16).

What is a “ neighborhood”  within the meaning of the 
cases granting enforcement of these restrictive covenants? 
An entire circle development, e.g. Chevy Chase Circle in 
Kenealy v. Chevy Chase Land Co., 63 App. D. C. 327, 72 
F. 2d 378 (1934). One block, in Meade v. Dennistone, 173 
Md. 295, 196 A. 330, 114 A. L. R. 1227 (1938); at least a 
block, in Porter v. Johnson, 115 S. W. 2d 528 (Mo. Supreme 
Court, 1938). Immediate vicinity, in Grady v. Garland, 67 
App. D. C. 73, 89 F. 2d 817 (1937). Counsel has not been 
able to find any case in which a minority of six houses in 
the middle of a built up block of 19 properties has been held 
to constitute a neighborhood for purpose of enforcing a 
“ restrictve neighborhood development”  covenant.

Grady v. Garland, supra, is the smallest unit of houses 
which the local courts have dealt with in these restrictive 
covenant cases. There 8 houses on the corner of a block— 
6 on First Street and 2 contiguous houses around the cor­



11

ner of First and S Streets on S Street—were involved, but 
the decision of the court is predicated directly on the houses 
in the immediate vicinity. Further, Grady v. Garland can 
be distinguished on the ground that the plaintiff who asserted 
the invalidity of the covenant came in and asked affirmative 
relief: not only that the covenant be cancelled as against 
his property on First Street but also that it be cancelled 
as against the two defendants’ properties around the corner 
on 8  Street. In the instant case appellants are not asking 
any affirmative relief but merely defending their ownership 
and occupancy against plaintiffs’ attack.

2. The plaintiffs below (appellees) have given us their 
own construction of “ neighborhood.”  Plaintiff Gorewitz 
testified that what she wanted to protect was not only the 
six Willson & Wardman properties but fundamentally the 
block (App. 35-36). Sparrel A. Wood, the prime mover 
and activating spirit in the case, testified for plaintiffs 
that he called block meetings; that what everyone was 
trying to do at the outset was to protect the “ citizens 
agreement”  which unsuccessfully attempted to blanket 
the block, and that no one (not even plaintiff Gorewitz) 
knew about the separate 1910 deed covenant on the 
Willson & Wardman houses until he himself had first 
been informed thereof by Patrick D. Holmes, verified the 
information at the title company, called a block meeting 
and then for the first time advised Mrs. Gorewitz and the 
others about the 1910 deed covenant on the Willson & Ward- 
man houses. (App. 54 et seq.) It is obvious beyond possibility 
of dispute that plaintiffs did not consider these six Willson 
& Wardman houses in the middle of the block as a neigh­
borhood.

3. The record negatives the existence of any neighbor­
hood scheme in this case, regardless whether one adopts 
the block-unit or even a six-house-middle-of-the-block seg­
ment unit as the yardstick. On the block-unit standard the 
record discloses that in 1928 some of the then owners of



12

property in the block attempted to blanket all properties 
in the block with a restrictive 50-year agreement barring 
Negro ownership or occupancy of properties in the block. 
(Typewritten Transcript, p. 22). The owners of 5 prop­
erties out of 19 properties in the block refused to sign; 
and it has been judicially determined in another suit 
wherein the same appellees were plaintiffs that said restric­
tive agreement was not binding. (Gorewitz v. Preston, Civil 
Action No. 10551; Typewritten Transcript, pp. 23, 24).

On the six-house-segment standard the record discloses 
that Willson & Wardman sold house No. 2 in the row [Lot 79 
(823), premises 2526 13th Street—the Fleet house] without 
any restrictive covenant in the deed. There are cases hold­
ing that where a person develops a tract of land and sub­
divides it into lots which he conveys subject to well defined 
restrictions, his failure to include the restrictions in the 
deeds to one or two lots will not shatter the general scheme.

Leader v. Leflamme, 111 Me. 242, 88 A. 859 (1913); 
same tract of land, Caron v. Margolin, 128 Me. 340, 147 
A. 419 (1929).

But a critical examination of the facts of those cases will 
show there is no magic in the word “ subdivision,”  that the 
word “ subdivision”  is not a word of art. Critical examina­
tion will show that the tract in question was a large tract 
of land in which one or two lots constitute a negligible per­
centage and leave the great mass of the land unaffected by 
the deviation. The instant case presents a different situation. 
Here the deviation is one out of six, and not a house on the 
end of a row but house No. 2 in the middle of the row:



13

13th

House No. 1 is isolated, so the only unbroken line of cov­
enanted houses is four houses beginning with the Gorewitz 
house No. 3 and running thru the Bogikes house No. 6. That 
reduces the “ neighborhood”  to four houses. But Willson & 
Wardman did not build four houses; they built sis. There 
is nothing in the record to show they were more concerned, 
placed a higher value on, or in any way held houses 3, 4, 5 
and 6 different from houses 1 and 2. The practical deviation 
with houses 1 and 2 out of the restrictive “ scheme”  shows 
a deviation of 33.3 per cent.

It needs no argument to prove that the smaller the size 
of the subdivision the more significant any deviation be­
comes. A  deviation of 33.3 per cent would cripple even so 
large a development as a city suburb. It is absolutely fatal 
in a subdivision of six lots in the middle of one city block. 
Certainly no one can reasonably hold that Willson & Ward- 
man created a restricted neighborhood out of their sub­
division of six lots in the middle of the 2500 block of 13th 
Street.

4. I f the restrictive covenant be construed as the hope of 
the builders Willson & Wardman that some day the owners 
of the other properties in the block would get together and 
create a restricted neighborhood, the record shows the col­
lapse and frustration of such hopes in 1928 when the owners



14

of five properties out of nineteen, more than 25 per cent of 
the properties, refused to sign the restrictive agreement. 
(Typewritten Transcript, pp. 16, 22.)

5. The record likewise negatives any theory of a compre­
hensive building plan. The record definitely shows the 
Willson & Wardman houses as a part of a long row of 
houses running the entire length of the square. (Typewrit­
ten Transcript, p. 12.) The houses in the block are not of 
the same type of construction. (Typewritten Transcript, 
p. 115.) The record is silent as to who built them; why or 
when; whether they were built in groups by real estate 
speculators or independently by individual owners. Merely 
stating that Willson & Wardman subdivided their ground 
and built a row of six dwelling houses in the middle of the 
block does not establish a comprehensive building scheme 
broad enough to support a racial restrictive covenant run­
ning with the land. Any time an owner subdivides a single 
lot he creates a new ‘ ‘ subdivision. ”  I f he builds two houses 
in the middle of a square he has created a building scheme. 
I f he conveys both these houses subject to a perpetual re­
strictive covenant against Negro ownership or occupation, 
is the court going to hold that those two houses constitute 
such a comprehensive building scheme that the covenant 
will run with the land against subsequent grantees poten­
tially ad infinitum.. If that is so, the value of the Negro’s 
citizenship becomes very small indeed.

6. Where racial prejudice is not concerned, restrictive 
covenants burdening the title and use of real estate are not 
encouraged.

“ Restrictions of this nature placed upon the use of 
real estate are to be strictly construed against the 
grantor, and liberally in favor of the grantee,”  per 
Van Orsdel, J., dissenting in McNeil v. Gary, supra, at 
p. 402, where a Negro was not involved.



15

The burden was on the plaintiffs below to establish that 
the covenant in this case ran with the land. Plaintiffs below 
offered no such evidence, but relied wholly on the fact that 
this court bad held that a similar covenant imposed on 
property in another neighborhood in the District of Colum­
bia ran with the land. (App. 22).

Torrey v. Wolfes et al, 56 App. D. C. 4, 6 F 2d 702 (1925). 
But the genius of our law is that the decision and opinion 
of the court must be read in the light of the facts before the 
court.

In the other cases involving a similar covenant the Court 
had before it much larger developments of property than 
the abbreviated undertaking of Willson & Wardman here. 
The picture in this case is of two real estate speculators in 
1910 putting up six houses in the middle of a block, un­
related in plan or program to any buildings on the sides, 
front or rear; putting a restrictive covenant on five out of 
the six houses, with the unrestricted house in the middle of 
the development; then 30 years later after Negroes had 
bought and moved into the unrestricted house No. 2, the 
white owners, subsequent grantees, of houses No. 3 and 6 
want to use the covenant to evict a Negro family which has 
bought and moved into house No. 4, where the entire block 
has no valid restriction against Negro ownership and oc­
cupancy, and in addition to the Negro family in house No. 2 
another Negro has bought property directly across the 
street from the Willson & Wardman houses. (App. 11), 
Typewritten Transcript, pp. 12, 115.) It is respectfully sub­
mitted that this is carrying racial prejudice to the point 
of spite and petulance which this Honorable Court can not 
possibly uphold.

B

The covenant in this case constitutes an undue and 
unlawful restraint on alienation.

In this jurisdiction covenants imposing a perpetual re­



1 6

straint against Negro ownership and occupation have been 
upheld without a critical examination of the implications 
involved.

E.g. Torrey v. Wolfes, 56 App. D. C. 4, 6 F. 2d 702 
(1925)

Cornish v. O’Donogliue, 58 App. D. C. 359, 30 F. 2d 
983 (1929)

But the question can not be dismissed so lightly. The re­
striction is basically inconsistent with the nature of a fee 
simple title. The evils of the rule against perpetuities be­
come slight by comparison. Politically and socially such 
perpetual covenants reflect a world gone with the wind, and 
rush into the realm of prophecy in which in view of the 
thunder of guns all over the world at this moment the wisest 
men fear to tread.

Real estate in this country is as much an article of sale 
and traffic as personal property, and the policy of govern­
ment has always been to encourage both the acquisition 
and easy and free alienation of lands.

Mandlebaum v. McDonnell, 29 Mich. 78,18 Am. Rep. 61 
(1874)

Even if we should admit for purposes of argument that a 
restraint on the fee for a limited duration is not illegal,

Contra, Los Angeles Investment Co. v. Gary, 181 Cal. 
680, 186 P. 596, 9 A. L. R. 115 (1919)

Nevertheless a perpetual covenant is too long and the class 
excluded is too large for a perpetual restraint to be upheld.

Porter v. Barrett, 233 Mich. 373, 206 N. W. 532, 42 
A. L. R. 1267 (1925)

White v. White, 108 W. Ya. 128,150 S. E. 531, 66 A. L. R. 
518 (1929)



17

The history of real estate development in the District of 
Columbia in the past 50 years shows an ever increasing use 
of private restrictive covenants as devices to prevent 
Negroes from buying property anywhere outside of tradi­
tionally Negro settled areas in the District of Columbia. 
The Negro population according to census reports and 
common observation is constantly growing. Yet these per­
petual covenants would take one historical moment and 
attempt to freeze the civic pattern of that moment world 
without end.

The result is overcrowding, with all the economic con­
comitants of higher rents for the old houses which whites 
have abandoned, higher sale prices, which with a low in­
come group such as the Negro population means that 
Negroes have to pile more persons into a house to meet 
the rental or monthly payments. This in turn produces 
abnormal wear and tear and depreciation of property, the 
creation of slum and depressed areas.

“ Similarly in Washington, D. C., there is a central 
nucleus of blocks almost entirely occupied by non-whites 
in the area that has its center at Seventh Street and 
Florida Avenue. This area is surrounded by a fringe 
of blocks in which non-white concentration is smaller. 
While there is thus a gradual transition in density of 
non-white population in the central part of Washington, 
the non-white areas come to an abrupt termination in 
the northwest quarter at Park Road and Monroe Street, 
and at Euclid Street between Sixteenth Street and 
Columbia Road. There are small detached colonies in 
Washington beyond this central nucleus in all direc­
tions. Outlying non-white colonies such as Anacostia 
in Washington, and at Ninety-fifth and State Streets 
in Chicago, are like satellites detached from the main 
mass.”  From The Structure and Growth of Residential 
Neighborhoods in American Cities, p. 68 (study by the 
Federal Housing Administration, Govt. Ptg. Office, 
1939).

“ This gradation of rent reveals qualitative differ­
ences of housing as between white and non-white races.



18

The differences are borne out by the relative condition 
of structures in blocks occupied by white, mixed, and 
non-white persons. Thus, 12.2 per cent of the struc­
tures in the 85,478 blocks (of a 64-city survey) occupied 
exclusively by white persons were in need of major 
repairs in 1934 or were unfit for use. In the 10,288 
mixed racial blocks, 38.6 per cent of the structures were 
in this poor condition, and in the 5,004 blocks occupied 
exclusively by non-white races, the proportion of such 
structures rose to 50.9 per cent.

“ Such figures compel us to conclude that other than 
white racial groups in American cities dwell largely in 
sections marked by low-qualitv housing.”  [ L o g . cited, 
p. 71.)

In the wake of overcrowding stalk crime, immorality, 
and disease. And the very prejudiced white people who 
make these perpetual restrictive covenants to keep Negro 
residences at arms-length pay the toll of the increased 
public cost of crime, immorality, disease and fear of vio­
lence. They pay in even a more direct way. They pen the 
Negroes up like cattle in ghettoes at night, yet these same 
Negroes in the morning enter their homes as servants to 
perform all the intimate tasks of the household including 
the pre-school training of the covenantors ’ children.

The Constitution prohibits the public authorities from 
creating these racial ghettoes;

Buchanan v. Warley, 245 U. S. 60, 62 L. ed. 149, 38 
S. Ct. 16 (1917)

yet the courts give private citizens the power by subtract­
ing ever increasing areas of land from the Negro market to 
do indirectly what the government can not do directly. 
It is not enough to engage in sophistries about “ freedom 
of contract.”

Corrigan v. Buckley, 55 App. D. C. 30, 299 F. 899 (1924) 
affirmed 271 U. S. 323, 70 L. ed. 969, 46 S. C. 521 
(1926)



19

Negroes are not asking the courts to compel white people 
to sell property to them against their will. What they 
are asking is that when a white person voluntarily makes 
up his mind to sell to a Negro, the sale should not be 
enjoined because some “ dead hand”  two generations 
previous not wishing Negroes as neighbors placed a per­
petual restriction on the land binding all future generations. 
Perhaps perpetual covenants might not have been oppressive 
in frontier days when there was a surplus of unappro­
priated land; but frontier days in American cities have 
passed. All the land is appropriated and owned. Ownership 
of land must pass by substitution, not new acquisition. The 
white people have the bulk of the land. Will they intelli­
gently try to make provision for the irresistible demands 
of an expanding population, or will they blindly permit 
private individuals whose social vision is no broader than 
their personal prejudices to constrict the natural expansion 
of residential area until we reach the point where the 
irresistible force meets the immovable body?

There is another factor which makes these perpetual 
racial restrictive covenants an unlawful restraint on aliena­
tion. Negroes constitute approximately 30 per cent of the 
population of the District of Columbia. These perpetual 
covenants reduce the medium real estate market by just 
30 per cent.

Even white neighborhoods do not remain static. “ There 
is a constant outward movement of neighborhoods because 
as neighborhoods become older they tend to be less desir­
able. Forces constantly and steadily at work are causing 
a deterioration in existing neighborhoods . . . Both the 
buildings and the people are always growing older. Physical 
depreciation of structures and the aging of families con­
stantly are lessening the vital powers of the neighborhood. 
Children grow up and move away. Houses with increasing 
age are faced with higher repair bills. This steady process 
of deterioration is hastened by obsolescence; a new and 
more modern type of structures relegates these structures



20

to the second rank. . . . There is often a sudden decline in 
value due to a sharp transition in the character of the 
neighborhood or to a period of depression in the real estate 
cycle. These internal changes due to depreciation and 
obsolescence in themselves cause shifts in the locations of 
neighborhoods. . . . The erection of new dwellings on the 
periphery of a city, made accessible by new circulatory 
systems sets in motion forces tending to draw population 
from the older houses and to cause all groups to move up 
a step leaving the oldest and cheapest houses to be occupied 
by the poorest families or to be vacated. The constant 
competition of new areas is itself a cause of neighborhood 
shifts. Every building boom, with its new crop of struc­
tures equipped with the latest modern devices, pushes all 
existing structures a notch down in the scale of desirabil­
ity.”  [F. H. A. study, loc. cited, pp. 121-122].

On whom does the economic loss in values fall? On the 
white owners or their descendants. It is a fallacy to speak 
of Negroes causing a change in the neighborhood. The 
Negroes never appear as a cause; their appearance is a 
result of previous changes in the neighborhood antedating 
their presence. Negroes cannot buy until white people are 
willing to sell. The white people do not sell until the old 
characteristics of the neighborhood are gone and they want 
to get out and away to a new neighborhood.

The proof that the covenants defeat themselves is the 
fact that the very people who make the covenants are the 
very people who break them.

“ On the other hand, houses in intermediate rental 
neighborhoods designed for small families can be 
handed down to a slightly lower income group as they 
lose some of their original desirability because of age 
and obsolescence. There is a loss of value when a 
transition to a lower income group occurs, but the 
house is still used for the essential purpose for which 
it was designed; and the loss of value is not so great. 
There is always a class filtration to occupy the houses



21

in the intermediate rental neighborhoods. Hence, a 
certain stability of value is assured.”  (F. H. A. study, 
loc. cited, pp. 121-122).

The truth is that instead of depreciating a neighborhood, 
Negro home purchasers tend to peg the falling values or 
even increase them because the demand of Negroes for 
homes always exceeds the supply. Neighborhoods follow 
a definite cycle of development. They begin as white home 
residential areas; they pass to partial tenancy, then almost 
complete tenancy with resultant anonymity. At that point 
the old neighborhood is gone—prior to the first Negro pur­
chase. Negro home owners come in and improve the old 
structures for their own family use. (App. 47). Values 
rise, even for the white owners who wish to remain.

In the present case appellants showed that the 2500 
block of 13th Street had passed to the tenancy cycle so
far as whites were concerned. (App.------ ). The Negroes
then and not until then were able to begin buying homes. 
The best evidence as to the effect of Negro purchases in 
this neighborhood comes from the lips of a white real estate 
expert, introduced by plaintiffs below as their own witness: 
(Patrick D. Holmes, App. 46, 47, 48, 50, 53):

‘ ‘ Cross-Examination
“ By Mr. Houston . . .
“ Q. Now Mr. Holmes, you are familiar with the property 

that the Huntleys bought?
“ A. Yes sir.
“ Q. Have they depreciated or deteriorated the property 

by their occupation?
“ A. I should say not.”  (App. 46) . . .
“ Q. Mr. Holmes will you give your expert opinion as to 

the effect of the Huntleys taking over the occupation and 
use of the real estate, considering the repairs they have 
made, as to either its depreciation or increase in value ?

“ A. They have improved the property, at least to the 
extent of $1,500.00 or $2,000.00. It is improved to that



22

extent. I would not have obligated myself to do it for less 
than that.

“ Q. In comparison with the other five houses in the 
same row, how would you say the Huntleys’ house com­
pares in appearance?

“ A. I have not inspected the interior of each of those 
houses, but, I would say they have got the best house in 
the row.”  (App. 47-48).

“ Re-direct Examination
“ By Mr. Gilligan: . . .
“ Q. Would you like to buy Mrs. Gorowitz’ home so 

that you might live next door to the Huntleys ?
“ A. I would rather live next door to the Huntleys than 

Mrs. Gorowitz.
“ Q. That is not my question. If she paid $13,000.00 for 

her property, and wanted to sell for $10,000.00, would you 
pay that and live next door to the Huntleys ?

“ A. No, I would not pay that for it now.
“ Q. Does the moving in of colored people depreciate the 

value of price in the neighborhood?
“ A. That depends on the neighborhood. In that neigh­

borhood the colored people have paid $1,000.00 to $3,000.00 
more.”  (App. 48).

* ‘ Recross-examination
“ By Mr. Houston: . . .
“ Q. Mrs. Gorowitz has testified that in 1927 she bought 

her property for $13,500.00. Assuming there were no Ne­
groes in the block at all, would her property be worth 
$13,500.00 today?

“ A. No sir, it would not be worth much more than 
$6,500.00.

“ Q. As a matter of fact generally in 1927 there was an 
era of great inflation in real estate values ?

“ A. Yes, sir.
■ “ Q. So, in your opinion as a real estate'Operator, if Mrs. 
Gorowitz wanted to sell, and was not able to get $13,500.00,



23

it would not be because Negroes were in the block, and that 
they have depreciated the value of the property?

“ A. No sir.”  (App. 50).
* * * * * * *

“ Q- I ask you further, in your opinon the fact of 
the Hundleys’ remaining in the block depreciates the value 
of the property in that block?

“ A. I don’t think so.”  (App. 53).
Photographs of exterior and interior views of the Hund­

ley house show that they maintain their property according 
to high cultural standards (Typewritten Transcript, pp.
------ ), and plaintiff Bogikes was forced to admit the same
(A pp. 43).

There must be a market for these houses which the white 
people want to leave. There must be a point at which 
because of obsolescence and other internal and external 
changes in the neighborhood no white people with income 
sufficient to maintain the houses will be willing to take them. 
What is to happen to the houses at that point in face of 
the perpetual restrictive covenant against Negro owner­
ship and occupancy? Here only two owners out of four 
covenanted houses are complaining about the Hundleys’ 
presence; and of these two plaintiff Bogikes says she will 
move even tho the Hundleys have to vacate under injunction 
if the Fleets remain in their house (App. 41). Will the 
court uphold a dog-in-the-manger attitude on the part of 
plaintiff Groiewitz, just because she bought her property 
for $13,500.00 at boom prices and cannot get her price now, 
and evict the Hundleys from her north side while the Fleets 
remain immovable on her south side? (App. 79). Will the 
court destroy the ultimate residual market for these houses 
to satisfy one citizen’s prejudice?

It is a-crime and a sour reflection on the moral standards 
of American life that Negroes have to buy obsolete houses 
at exorbitant prices, which white people are vacating, in 
order to have decent housing. That must be a comforting



24

thought for a Negro soldier to reflect upon while standing 
sentry duty in Australia or the Philippines. But we con­
fine ourselves to the question of marketability. And the 
point there is that these perpetual covenants not only plague 
the Negroes but ultimately fasten themselves like millstones 
around the necks of the whites who make them. We repeat 
these perpetual covenants run too long and the class ex­
cluded is too large for them to be upheld. They are an 
anachronism; they are inconsistent with the structure and 
growth, and ever changing population of our American 
cities. They constitute an unlawful restraint on alienation, 
and the courts should strike a blow for national unity by 
emphatically declaring them null and void and a cloud on 
the title to the land.

See dissenting opinion of Stephens, J., in Grady v. Gar­
land, supra.

C

The covenant was extinguished when title vested in the 
United States, or its alter ego, the Home Owners Loan 
Corporation.

The Home Owners Loan Corporation is a governmental 
agency of the United States partaking of all incidents of 
sovereignty not waived by Congress. It was created by 
the mere fiat of Congress, is under the exclusive control of 
the Federal government; all its officers and agents are gov­
ernment employees; the objects of its creation and oper­
ation are governmental functions; its funds are public 
funds; and criminal interference with its operations is an 
offense against the United States.

See Home Owners Loan Act of June 13, 1933, c. 64, 
48 Stat. 128; U. S. Code, title 12, ch. 12. (App. 87 
et seq.)



25

The Act itself denominates the H. 0. L. C. as “ an instru­
mentality of the United States.”

U. S. Code, title 12, ch. 12, sec. 1463 (a). (App. 87).

The Attorney General of the United States has ruled the 
H. 0. L. C. to be

“ . . . in everything but form, a bureau or depart­
ment of the Federal government. It is regulated and 
directed by Federal officials; all of its capital stock 
is furnished by the government; it is given free use of 
the mails.”  37 Op. Atty. Gen. 241, 244 (1933).

The Supreme Court of the United States has recognized 
the H. 0. L. C. as an arm of the Federal government for 
the purposes for which it was created.

Pittman v. H. 0. L. C., 308 IT. S. 21, 32 (------ )
See also Graves v. New York, 306 U. S. 466, 477, 486

(1938)

The state courts have characterized the H. 0. L. C. as an 
arm of the government.

Comm. v. Rouse, 163 Ya. 841,178 S. E. 37, 39 (1935)

The Home Owners Loan Corporaton is operated directly 
and exclusively by Federal officers. The Federal Home 
Loan Bank Board members—themselves appointees of the 
President—were ordered by Congress to create the Home 
Owners Loan Corporation, to serve as the board of directors 
of the H. 0. L. C., without additional compensation, and to 
operate the H. 0. L. C. “ under such by-laws, rules and regu­
lations as it may prescribe for the accomplishment of the 
purposes and intent of this section.”

Sections 1462 and 1463 (a)



26

The employees of the H. 0. L. C. are considered employees 
of the United States.

Comm. v. Rouse, supra
Walker v. H. 0. L. C., 25 F. Supp. 589 (1938)

The entire stock of the H. 0. L. C. was subscribed for 
by the Secretary of the Treasury on behalf of the United 
States.

Secton 1463 (b)

The obligations of the H. 0. L. C. are obligations of the 
United States, and guaranteed principal and interest by 
the government; and in case the H. 0. L. C. is unable to 
pay, are paid by the Secretary of the Treasury out of monies 
in the Treasury.

Section 1463 (c)

The risk of the undertaking lies entirely upon the United 
States; and into the Treasury of the United States go all 
surplus and profits.

Section 1463 (k)

Congress has specifically clothed the H. 0. L. C. with 
most of the sovereign immunity from taxation. Its bonds 
are exempt both as to principal and interest from all Fed­
eral and state taxation, except Federal surtax, estate, in­
heritance and gift taxes; the corporate franchise, capital, 
reserves and surplus are exempt from all taxation. Only 
with respect to its real property did Congress waive this 
immunity.

Section 1463 (c)



27

Its mortgages cannot be subjected to a state tax.

Pittman v. H. 0. L. C., 308 U. S. 21 (1939)
Sabin v. H. 0. L. C., — Okla. 105 P. 2d 245 (1940) 
H. 0. L. C. v. Anderson, — Kan, —, 64 P. 2d 14 (1937)

It is immune to state laws demanding certain requirements 
of “ foreign corporations.”

H. 0. L. C. v. Stookey, 59 Idaho 267, 81 P. 2d 1096 (1938) 
Severson v. H. 0. L. C., 184 Okla. 496, 88 P. 2d 344

(1939)
H. 0. L. C. v. Barone, 164 Misc. 187, 298 N. Y. S. 531 

(1937)

It is entitled “ to the free use of the United States mails 
foi its official business in the same manner as the executive 
departments of the Government.”

Section 1463 (j)

The financial affairs of the II. O. L. C. are regulated as 
those of any other department of the Federal government. 
It is forbidden to “ incur any expense for administrative 
purposes except of an annual appropriation by Congress 
for that purpose”  and all such expenses are required “ to 
be accounted for and audited in accordance with the terms 
and provisons of the Budget and Accounting Act of 1921.”

Act of May 23, 1938, c.— , sec. 4, 52 Stat. 410

In 1939 the H. O. L. C. was included in the agencies over 
which the Federal Loan Administrator was given super­
visory powers and the responsibility of coordination of 
functions and activities.

Reorg. Plan No. 1, sec. 402, U. S. Code, title 5, section 
133t, note.



2 8

In recovering back the money lent home owners on mort­
gages it is performing a public function.

H. 0. L. C. v. Grundy, 122 N. J. L. 301, 4 A. (2d) 784 
(1939)

It has long been settled that Congress may create and 
use any instrumentality it may deem appropriate to carry 
out the powers conferred upon it by the Constitution.

McCulloch v. Maryland, 4 Wheat (17 U. S.) 316 (1819) 
Clallam County v. U. S., 263 U. S. 341 (1923)

This power includes the power to create corporations for 
the exercise of governmental functions.

Clallam County v. U. S., supra

The fact the government chooses to act through the cor­
porate form rather than an old-line executive department 
is immaterial on the issue of sovereign exemption.

Walker v. II. 0. L. C., 25 F. Supp. 589 (1938)

Congress has the full power to determine the sovereign 
powers and immunities of its instrumentalities, and the in­
tention of Congress as determined by express declaration 
or the rights, powers and privileges conferred on the in­
strumentality are determinative.

Helvering v. Gerhardt, 304 U. S. 405 (1938)
Pittman v. E. 0. L. C., 308 U. S. 21 (1939)

The rights, powers and privileges which Congress conferred 
on the H. 0. L. C. are inconsistent Avith any theory other 
than that the H. O. L. C. is a sovereign instrumentality of 
the government itself.

Adams v. H. 0. L. C., 107 F. 2d 139 (1939)



29

The decisions which hold the H. 0. L. C. suable in tort

E. g., Prato v. H. 0. L. C., 106 F. 2d 128 (1939) 

or subject to garnishment.

E. g., Central Market v. King, 132 Neb. 380, 272 N. W.
244 (1937)

rest on an interpretation that Congress has expressly 
waived the immunity of the H. 0. L. C. from the judicial 
process. Congress has authorized suits against the United 
States itself in certain cases.

See United States Code, title 28, sections 761 et seq.

The purposes of the H. 0. L. C. fall directly within the 
constitutional powers of Congress to tax, borrow and make 
appropriations for the general welfare.

U. S. v. Kay, 89 F. 2d (19) (1937)
Markowitz v. Berg, 125 N. J. Eq. 56, 4 A. 2d 410 (1939)

The only functions it is authorized to perform are govern­
mental in nature. This is no business partnership; its only 
contacts with the commercial field are incidental contacts 
arising from the refinancing of existing private mortgages.

The cases which apply the commercial concept to other 
corporations in which the government is interested can all 
be distinguished either by split OAvnership or control; incor­
poration under local laws, or other features different from 
the exclusive creation, ownership, control, risk, or financing 
by the United States.

What sort of title does the government take Avhen it ac­
quires title thru an H. 0. L. C. foreclosure? Does it pass 
title free from racial restrictive covenants?



30

Express authority on the first question has not been 
found; but it is submitted that from the elements of sover­
eignty cloaking the II. 0. L. C. and the use of public funds 
and guarantee of all H. 0. L. C. obligations by the United 
States the foreclosure passes title to the government in its 
sovereign capacity.

A deed to the state is not forfeited because the property 
is not used for purposes restricted by the deed.

See State v. Lake Shore R. Co., 1 Ohio N. P. 292 (------ )

If the land in question had been sold to the defendants 
at a tax sale, they would have taken free from the racial 
restrictive covenant.

Ocean Beach Improvement Co. v. Jenkins, — Fla. —, 
194 So. 787 (1940)

The federal law is that a valid tax deed clothes the pur­
chaser with a new and complete title in the land, under an 
independent grant from the sovereign which bars all prior 
titles, encumbrances and all equities arising out of them.

See Hefner v. Northwestern Mutual Life Ins. Co., 123 
U. S. 747, 751, — L. ed. — (1889)

Authority to the same effect is not lacking in the states.

E. g., Hunt v. Boston, 183 Mass. 303, 167 N. E. 244 
(1903)

Hill v. Williams, 104 Md. 595, 65 A. 413 (1906) 
Almogardo Imp. Co. v. Hennessee, 40 N. M. 162, 56 P. 

2d 1127 (1936)

The purchaser from one holding under a tax deed is as 
fully protected as a bona fide purchaser.

See Atlanta Nat. Bldg. & Ijoan A ss’n v. Gilmer, 128
F. 293, 298 (1904)



31

There is no fundamental distinction between a sale of 
land for taxes due the United States, and a sale of that same 
land for the satisfaction of a mortgage debt due the United 
States. In each case the government is getting merely 
what was due it. In each case the goveimment exercises 
its sovereign prerogative in passing to the purchaser its 
own title in order to replenish its treasury.

If the United States had acquired title to the land here 
involved by eminent domain, the restrictive covenant would 
have been extinguished. This proposition is too plain for 
argument. Yet the plaintiffs below would not have been 
entitled to any compensation for destruction of the restric­
tive covenant (assuming it was binding and ran with the 
land).

Moses v. Hazen, 63 App. D. C. 104, 68 F. 2d 842 (1934) 
U. S. v. Certain Lands, 112 F. 622 (------ )

Eminent domain is merely one method of acquiring title, 
and only a method. Suppose the government had decided 
to erect a court house on Square 2866. Would it be con­
tended that if the government acquired the Hundley, Gore- 
witz and Bogikes properties by voluntary purchase instead 
of eminent domain that Negroes would be trespassers 
when they stepped on such parcels but not elsewhere in the 
square.

The government paid full value for the Hundley prop­
erty. A  public auction sale is one device for ascertaining 
value just as the award of a jury of condemnation is 
another. When the government paid full value for this par­
ticular lot, it took an unrestricted title, and as sovereign 
could not be bound by a perpetual restrictive covenant 
against one class of its citizens.

Would it be contended that Congress by mere legislative 
fiat without payment of any compensation could not trans­
fer title from the H. 0. L. C. to the United States Housing 
Authority, the Secretary of War or any other governmental



32

agency? If Congress can do this, the reason is that title has 
been vested in the sovereign United States.

Let us suppose Congress desired to use this property 
while the United States held the title as a dormitory for 
war workers. Would Negro citizens engaged in govern­
ment war work be barred from residence, renting rooms, 
because of the covenant? Or suppose the Army wanted to 
use this property as quarters for Negro officers stationed 
in Washington. Would any court issue an injunction 
against the Negro officers based on the restrictive covenant?

The method by which the government acquires title: 
whether thru a special agency of its own or thru an old- 
line executive department is immaterial.

Clallam County v. U. S., supra

After acquiring its paramount title the government, thru 
its alter ego the H. 0. L. C., could not continue the pro­
hibition of this perpetual restrictive covenant. It could 
neither command nor permit that the property be owned 
perpetually by one class of its citizens to the exclusion of 
another class, based solely on race or color. Such would be 
directly opposed to the Fifth Amendment and the Civil 
Rights Act giving all citizens equal right to acquire prop­
erty.

U. S. Code, title 8, section 42. (App 86).

The implication of a contrary position is that the govern­
ment can take public money from the Treasury to which all 
citizens have contributed according to their means, and use 
that money to perpetuate discriminations against one class 
of its citizens forever, based solely on race or color. If it 
could do this, it could perpetuate discriminations against 
Catholics in favor of Protestants. Or to make the illustra­
tion more extreme, the plaintiffs below would have to argue 
that the H. 0. L. C. could make a loan on property subject



33

to a perpetual restrictive covenant that only white Catholics 
might own and occupy the land, then after default by the 
white Catholic owner, foreclosure and purchase by the gov­
ernment at public auction, the government’s resale market 
would be closed to Mexicans, Negroes, and all white Protes­
tants.

In the instant case the record shows that the H. 0. L. C. 
had a mortgage loan on the Bogikes property, foreclosed, 
purchased, and then sold to the Bogikes for $8,000.00 when 
it was asking $9,500.00 and had a $10,000.00 offer from a 
Negro bishop. (App. 39, 78). Can government officials be 
excused for not getting back into the public treasury all the 
money they can? Suppose this property were sold at an 
advance, that would merely go to offset losses on other prop­
el ties in the total operation of the H. O. L. C. The govern­
ment is under an imperative duty to save the public treas­
ury from loss.

Prigg v. Pennsylvania, 16 Pet. 539, 10 L. ed. 1060, 1089 
(1842)

H. O. L. C. v. Grundy, supra

The funds of the United States are specifically appro­
priated to certain national objects. It is well settled that 
the United States cannot hold property for private pur­
poses.

Van Brochlin v. Tennessee, 117 U. S. 151, 29 L. ed. 845 
(1886)

U. S. v. Insley, 130 U. S. 263, 32 L. ed. 968 (1899)
Buchanan v. Alexander, 4 How. 20,11 L. ed. 857 (1846)

The United States cannot own property except in its gov­
ernmental capacity.

77. S. v. Iron Works, 31 F. 2d 535 (1929)

Its power of disposition of federally-owned property must



34

be in accordance with public policy and with the public in­
terest.

Aslnvander v. Tennessee Valley Authority, 297 U. S.
288, 338, — L. ed. — (1936)

We concede that the H. 0. L. C. was to help all home own­
ers. In this case the white home owner was helped. He 
got his loan. The purpose of the Act was fulfilled. Our 
problem does not arise until he defaults. Then when the 
government starts salvage proceedings by way of fore­
closure if the neighbors want to save the covenant (assum­
ing it is binding on private owners) let them buy the prop­
erty in at the foreclosure sale Let the entire block owners 
buy it in. Let the whole Citizens Association buy it in. But 
can they stand by, permit the government to buy it in and 
the property to become part of the public assets of the 
United States, and then insist the government be a party 
to discriminating against an entire class of its citizens solely 
because of race or color?

In the instant case the record shows that the deed in trust 
securing the H. 0. L. C. loan made no reference to the cove­
nant. The trustees deed to the H. 0. L. C. did not refer to 
the covenant. The H. 0. L. C. deed to Holmes, the Hund­
ley’s grantor, made no reference to and ignored the cove­
nant. (App. 72). There is record proof that the covenant 
had ceased to become a part of the chain of title after the 
property had passed into the ownership and control of the 
United States.

The covenant, so far as it would impose any obligation 
on the United States, or its alter ego, the H. 0. L. C., or its 
successors in interest, must rest on an obligation implied 
in law. There was no express agreement by the government 
to observe or respect the covenant (assuming it could legally 
do so). There cannot be a covenant implied in fact'because 
that would be to fly directly in the teeth of the Statute of 
Frauds.



35

D. C. Code, 1929, title 11, sec. 2, p. 117.

But the covenant could not arise by implication of law 
against the government where such implication violates the 
declared public policy of the government itself.

U. S. Code, title 8, section 42, supra

The decisive fact in this connection is that the govern­
ment acquired title in the course of performing a public 
function and its courts cannot raise an implication of law 
against the government contrary to the public policy of 
the government itself against race discrimination.

It may be argued that for the government to accomplish 
an extinguishment of the restrictive covenant the constitu­
tional rights of the white owners would be violated. The 
answer is they have no property right in the Hundley land 
for which they are entitled to compensation.

Moses v. Hasen, supra

They have no constitutional right to demand that the gov­
ernment be a party to race discrimination.

The desire of plaintiffs below to keep Negroes out of the 
Hundley property reduces itself down to purely social 
considerations. The record negatives any idea of economic 
loss or depreciation of their property. (App. 48, 53).

The law cuts both ways. The United States Supreme 
Court has held as against Negroes that social interests are 
not within the constitutional protection.

Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256 (1896)

The Court is bound to make the same ruling as to whites. 
The white owners and the white neighbors have to accept 
government aid subject to constitutional limitations that 
they cannot call on the courts to protect them in their purely 
social prejudices.



3 6

D

Recital of the covenant in the deed from Holmes to the 
Hundleys could not revive the covenant ivhich had been 
extinguished, by the previous conveyances without notice.

The mere recital “ subject to the covenants of record”
in the deed from Holmes to the Hundleys (A p p .------ ) did
not revive the covenant. Assuming that Holmes could 
adopt the covenant and revive it, the record is clear that he 
did not intend to do so. In the first place, such an intention 
would have been wholly inconsistent with his direct sale to 
the Hundleys who are Negroes. The obvious reason why 
he had the recitation made in the deed was to protect him­
self from liability and save himself the burden and bother 
of a law suit. Holmes’ testimony is conclusive on this 
point:

“ Direct Examination
“ By Mr. Gilligan: . . .
“ Q. Just what is in there regarding the question of a 

restrictive covenant?
“ A. They (the Hundleys) would have five days to investi­

gate the covenant before they signed, thru the title com­
pany, and if they did not care to carry it thru, I  would 
refund their money.

“ Q. Anything else?
“ Yes, if they did carry it thru, I was to he relieved of 

any obligation, or legal action of any kind.”  (App. 45, 46).
The record makes it clear beyond the shadow of a doubt 

that Holmes was not trying to confer any benefit on the 
Gorewitzes by the recital of the covenant because he testified 
that the reason he gave up his plan to use premises 2530 
as his home was because he did not want to live next to Mrs. 
Gorewitz (App. 46). Bogikes’ name never entered Holmes’ 
testimony. There is nothing to indicate that Holmes had 
ever seen or heard of the Bogikes until the trial of this case.

There was no priority of contract between Holmes and



37

Gorewitz, or between Holmes and Bogikes. Holmes had 
no other property in the neighborhood which the restrictive 
covenant might “ benefit.”  There was no building scheme 
or community development in progress which Holmes could 
be held to have adopted. The truth of the matter was that 
he recognized there might be a dispute over the Hundleys 
taking the property, and he was playing safe.

A  restrictive covenant to be enforceable must be shown 
to have been put on the land for the benefit of the land 
owned by the third party, and in determining that question 
the court will regard the intent of the parties.

Herb. v. Gerstein, 41 F. Supp. 634, 635 (D. C., Dist.
Col., 1941)

Therefore there was no revival of the covenant by the 
recital in the Holmes deed in this case.

II

The Court erred in ordering appellants to remove from 
the property because the covenant does not prohibit the 
occupancy and possession of the property by a Negro.

The prohibitions expressed by the restrictive covenant in 
this case are that the property be never “ rented, leased, 
sold, transferred or conveyed unto any Negro or colored 
person.”  Being in derogation of the fee the covenant is to 
be construed strictly and every intendment taken in favor 
of the free use of the property.

Zinn v. Sidler, 268 Mo. 680, 187 S. W. 1172, L. R. A.
1917 A., 455 (1916)

The court exhausted its power, assuming the validity of the 
covenant, and its binding effect on Holmes and the Hund­
leys, when it cancelled the deed from Holmes to the Hund­



38

leys. It could put Holmes under an injunction not to rent 
or lease to the Hundleys, but if he chose to permit them 
to remain in possession by sufferance, the covenant would 
not be breached.

It may be argued that this would practically nullify the 
force of the covenant. The answer is that neither Holmes 
nor the Hundleys nor the Court made the covenant, and 
it is the function of the Court to construe the covenant as 
written, not to revise it.

I l l

The Court erred, to the material prejudice of appellants in

A. Excluding the evidence proffered as to the economic 
and social laws controlling the cycle of residential use of 
real estate.

The position of the trial court in this case was that he was 
simply interested in the question as to the particular area 
in which the property in question was located (App. 65) and 
to the facts involved in this particular action (App. 66). 
Thereafter appellants tendered Dr. E. Franklin Frasier, 
an expert sociologist, who had made a study of the city of 
Washington to testify as to changes in the character of this 
particular neighborhood (App. 83). The court excluded 
the evidence. The court did accept a plat of the surround­
ing territory showing the character of the racial occupancy 
and attached said plat to his findings of fact. (Typewritten
Transcript, p. ------ ). But as appellants pointed out this
was merely a static picture of the neighborhood at one 
particular historical moment (App. 65). It did not go 
beyond, and show the forces at work or give any indication 
of the rate of change, the degree of change or why.

It is submitted that this case was not as simple as the 
plaintiffs below made it appear from their counsel's open­
ing statement: that there was the covenant in the deeds



39

to the properties, a violation with notice by the Hundleys 
who were colored and therefore an injunction would lie. 
(App. 22). The court was not merely traveling over old 
ground with the facts on all fours with previous decisions. 
This case called for an extension of existing precedents if 
the covenant was to be upheld.

That meant consciously or otherwise the court had to con­
sider or at least project his decision against a certain men­
tal picture of the ends to be achieved by his decision. A 
certain picture or set of social consequences is delineated 
in the issuance of the injunction: a static picture. Certainly 
appellants had the right to present the other side: the 
growth of the population, the path of the population, the 
futility of the injunction and the consequences attendant 
upon establishing a little island of 4 houses, not enough 
to constitute a neighborhood, which would be set out in the 
middle of a flood.

In Grady v. Garland, supra, Mr. Justice Van Orsdell said 
that covenants were for the very purpose of stemming the 
movement of the Negro population (at p. 75). Certainly 
appellants were entitled to make their proof that these 
covenants do not stem the movement of the Negro popula­
tion ; that under pressure of economic laws and population 
growth the movement of population sweeps on and over 
these covenants.

The Court unduly restricted the area of proof. As illus­
tration of the prejudice suffered by appellants and as a 
demonstration of the way these economic and population 
laws were working right in this very neighborhood, a Negro 
purchased property directly across the street from the 
parties to this suit between the date of trial and the date 
the judgment was rendered.

It may be argued that there was no covenant on this latter 
house, and therefore plaintiffs below could not be prejudiced 
by anything happening on those premises. But the answer 
is that the covenanted segment of the block is not isolated; 
that it is part and parcel of the block and bound to be affected



40

by changes occurring in the ownership and occupation of 
property therein. Therefore, merely looking at the condi­
tion of the block at any one moment without taking into con­
sideration the rapid changes in the surrounding territory, 
the history of the neighborhood and the cycle of real estate 
use, is discarding the meat and looking merely at the shell.

B. Excluding the evidence whether appellee Bogikes 
would remain in her house if the Fleets remained in theirs.

This question (p. 42) went to the heart of the position of 
plaintiff Bogikes in asking the court to issue its injunction. 
The court would not issue an injunction to accomplish a 
vain thing. It would not set aside the sale to the Hundleys 
if the Bogikes actually sought no benefit thereby. The 
record shows that both as to the Gorewitzes and the Bogikes 
their personal complaints were against the Fleets. The 
Fleets were the ones they claimed were disturbing the block. 
The Fleets were the ones the neighbors wanted out of the 
block. Therefore her answer whether she would remain 
if the Fleets did was most material.

The error was not cured by the fact that shortly before 
she had stated she did not think she would stay if the Fleets 
did (App. 41) because immediately thereafter she stated 
she was sure the neighbors would not let the Fleets remain. 
And the question became material, supposing there was no 
way to get the Fleets out and they intended to remain, 
would she remain. That answer, if in the negative, would 
have been sufficient ground for the court denying her the 
injunction, especially after Fleet himself had taken the 
stand and said he had no intention of leaving.

C. Excluding the evidence regarding Negroes being able 
to and actually crossing the color line because of proscrip­
tions on them because of race.

There is a sermon in this point for those willing to read. 
White people defeat their own ends by rigid inflexible pro­



41

scriptions against Negroes. They compel Negroes to pass 
for white and infiltrate among them: in their homes, in tlieir 
families; and then where are the white people. They are not 
able to tell who is who. The record shows how completely 
mistaken Mrs. Gorewitz was in her ability to tell colored 
from white (App. 30-31, 72). Appellants offered to prove 
that Preston who bought the Fleet house and sold to them 
was a Negro who was mistaken for white App. 69). The 
evidence showed that appellant Mrs. Hundley had been 
mistaken as not being a Negro at college (App. 69). The 
proof that appellants could have produced about Negroes 
living and working as white would have shocked the court. 
Appellants urge that it is time for the courts to pause and 
give some consideration to the traps the white people are 
digging for themselves, and the extent to which they are 
undermining their own circles by the senseless proscriptions 
against respectable Negro citizens having decent housing, 
minding their own business, on the basis of an attitude fast 
dying in many parts of the world.

IV

Enforcement of the covenant by the court is governmental 
action, and constitutes a taking of appellants’ property 
without due process of law contrary to the Fifth Amend­
ment to the Constitution of the United States.

The Fifth Amendment to the Constitution of the United 
States prohibits the deprivation, by action of the United 
States government, of life, liberty or property without due 
process of law. The general scope of this prohibition against 
the Federal government is the same as the restraint imposed 
on the states by the due process clause of the Fourteenth 
Amendment.

Heiner v. Donnan, 285 U. S. 312 (1932)
Twining v. New Jersey, 211 U. S. 78 (1908)



42

The prohibitions of the due process clause of the Fifth 
Amendment apply to the legislative, executive and judicial 
branches of the United States alike.

See Murray v. Hoboken Land & Imp. Co., 18 How. 272 
(1856)

After the United States had acquired and passed on to its 
purchaser Holmes a paramount title free from the racial 
restrictive covenant (See Argument I, C, supra), it could 
not enforce this covenant on the facts of this case without 
taking appellants’ property without due process of law 
against the prohibitions of the Fifth Amendment.

It matters not that in the District of Columbia the courts 
have worked out a judicial policy of protecting these cove­
nants without the aid of legislation. A  judicial policy is 
as much within the prohibitions of the constitutional amend­
ments as legislative action.

American Federation v. Swing, 312 U. S. 321, 85 L. ed. 
855 (1941)

Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676 (1880)

V
The injuncton is futile because the object of the covenant 

cannot be attained.

The object of the restrictive covenant of necessity must 
have been, if anything, to keep the six Willson & Wardman 
houses white. How it could actually have any purpose at 
all in view of the omission of the covenant in the title to 
house No. 2 is difficult to see; but if it had a purpose and 
was not a mere joker to catch purchasers, the purpose must 
have been to keep the six houses white. They are not white 
any longer. House No. 2 is occupied, and prior to the pur­
chase of their property by the Hundleys was occupied, by 
a Negro family. That sets a Negro family right in the 
middle of the segment. Another Negro has bought property 
directly across the street.



43

Does that work a change of neighborhood? Some courts 
have held that two Negroes in a block do not work such a 
change in a neighborhood as to nullify the covenant and 
render it useless.

Meade v. Dennistone, supra

But in the Meade case the opinion shows there were 29 
houses in the block, of which 28 were under covenant. The 
percentage of 2 Negro families in the 29 house block is 6.8 
per cent; the percentage of the one Negro family in the 
28 covenanted houses is 3.5 per cent. In the principal case 
the percentage of 2 Negro families in the six house segment 
is 33.3 per cent; the percentage of the one Negro family in 
the 5 covenanted houses is 20 per cent.

I f this is not considered sufficient to constitute such a 
change in the character of the six-house segment as to nullify 
the covenant (assuming it to be otherwise binding) and 
render it useless, appellants respectfully call attention to 
the difference between the way prejudice works on human 
beings and on property. When it comes to human beings 
one drop of Negro blood classifies the entire person a Negro 
for purposes of discrimination and segregation. Yet when 
it comes to property that white people wish to keep Negroes 
have to preponderate before the neighborhood becomes 
black. We appeal to reason and the latent sense of fairness 
in the Court to wipe out such inconsistencies.

If the object of the covenant is to pander to appellees’ 
prejudices, then the injury to their feelings from the pres­
ence of the Negro family, the Fleets, is fatal and they can­
not be cured. So the presence of the Hundleys is imma­
terial.

The court will not grant an injunction if the object of the 
covenant cannot be attained.

Letteau v. Ellis, 10 P. 2d 496 (Ct. App. Cal., 1932)



44

CONCLUSION

Appellants appeal to a new day, a new spirit of national 
unity, a new sense of tolerance and fair play to have the 
Court critically examine old concepts and old decisions, 
feeling sure that a critical re-examination will lead it to 
reverse the judgment of the District Court with directions 
to dismiss the complaint.

Respectfully submitted,

C h a r l e s  H . H o u s t o n  
615 F  Street Northwest 

Attorney for Appellants.
S p o t t sw o o d  R o b in s o n , J r .

Of Counsel.



I

UNITED STATES COURT OF APPEALS FOR THE 
DISTRICT OF COLUMBIA

No, 8154

Frederick F. Hundley and Mary G, Hundley, appellants,

v ,

Rebecca Gorewitz, Paul F. Bogikes and Marion 0 . Bogikes,
Appellees.

Appeal from the D istrict Court of the United States for the
D istrict of Columbia

(Argued November 16, 1942 Decided December 14, 1942)

Mr, C h a r l e s H o u ston, for appellants,
Messrs .  Henry G i l l igan and James A. Crooks, for  appellees.

Before GR03ER, C. J . ,  and VINSON and RUTLEDGE, JJ.

GRONER, C.J. : In September, 1910, Harry B. 1"'illson  and Harry
Wardman were the owners of six  contiguous lots  located on the west 
side of Thirteenth Street, Northwest, between C lifton  and Euclid 
Streets, in the D istrict of Columbia. They erected thereon a block 
of s ix  residences, which are now numbered respectively 2524, 2526, 2528, 
2530, 2532 and 2534 Thirteenth Street. The houses were sold to d i f ­
ferent purchasers and in each of the deeds of conveyance, with the 
exception of that for  house now numbered 2526, the following r e s tr ic ­
tive  covenant appears:

"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 ($2 ,000 .00) which shall be a lien  
against said property."

The case turns upon the e f fe c t  to be given this covenant.

Appellants, Frederick F. Hundley and Mary G. Hundley, his wife, 
are Negroes, who since January 17, 1941, have owned and occupied 
house No. 2530. Appellee Gorewitz owns and occupies No, 2528 and 
appellee Bogikes and his wife own and occupy No. 2534. A ll  three 
properties are restricted  against negro ovaiership or occupation. Ap- 
pelless brought this su it  against appellants in the D istrict  Court for  
vio lation  of the covenant. There was a t r ia l  without a jury, and on 
Decemb-.r 1, 1941, the court permanently enjoined appellants from 
^ver "owning, occupying, se ll in g , leasing, transf- rring or conveying" 
the property in question, and cancelled their deed.

In this court appellants in s is t  that the covenant constitutes an u n d u ^  
and unlawful restraint on alien ation . But in view of the consistent 
adjudications in similar cases, i t  must now be conceded that the settled  
law in this jurisd iction  is that such covenants as this arc valid and





- 2 -

enforoeable in equity by way of injunction. Corrigan v . Buckley, 55 
App. D. C. 30, 299 Fed. 899; Torrey ct al v . Wolfes et a l , 56 App.
B. C. 4, 6F. (2d) 702; Castle-man v . Avignone et a l , 56 App. D. C.
253, 12 F. (2d) 326; Russell et al v ,  Wallace, 58 App, D. C. 357, 30 F. 
(2d) 981; Cornish v. O'Donoghue, 58 App. D. C. 359, 30 F. (2d) 983;
Grady v . Garland, 67 App." B. C. 73, 89 F. (2d) 817. Nor is  r e l ie f  by 
way of injunction foreclosed by the penalty porivision contained in the 
covenant. Torrey v, Wolfes, supra; Edwards v . West Woodridge Theatre Co. ,  
60 App. D. C. 362. However, i t  is  equally well settled  that, since the 
purpose of such restriction s  in the mutual benefit of the burdened propert 
ie s ,  when i t  is  shown that the neighborhood in question has so changed 
in i t s  character and environment and in the uses to which the property 
therein may be put that the purpose of the covenant cannot be carried  
out, or that i t s  enforcement would substantially  lessen th6 value of the 
property, or, in short, that injunctive r e l ie f  would not give a benefit  
but rather impose a hardship, the rule w ill  not be enforced.

This exception to the rule is applicable in the case of a covenant 
such as wc have here when, in the natural growth of a c ity , property 
orig in ally  constructed for  residential purposes is  abandoned for  homes 
of more modern construction in more dc-sirable locations, fo r  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 c la s s .  And i t  is  also applicable where removals are 
caused by constant penetration into white neighborhoods of colored per­
sons, For in such cases to enforce the restrictio n  would be to create 
an unnatural barrier to c iv ic  development and thereby to estab lish  a 
v ir tu a lly  uninhabitable section of the c ity .  IThenovcr, therefore, i t  is  
shewn that the purpose of the restrictio n  has been frustrated , and that 
the result of enforcing i t  is  to depreciate rather than to enhance the 
value of the property concerned, a court of equity ought not to in terfere .

The inquiry then is  whether the circumstances of this case require 
the application of these exceptions to the rule. F irst  of a l l ,  wo have 
here a restr ic tiv e  covenant made more than th irty  years ago, under 
residential conditions wholly d ifferent from those obtaining today.
On both sides of Thirteenth Street in the block wo. e r n . concerned with 
there is  a to ta l  of sixteen houses and three apartments. None of these, 
save f iv e  of the s ix  hous-. s we have referred to , is  burdened with a 
restr ic t iv e  covenant against Negroes. lf.hen, some f i f te e n  years ago, 
i t  was attempted to extend the restriction  by means of an agreement 
among a l l  the owners of property in th- block, the attempt fa i le d .
At the time this suit  was brought the one unrestricted house of the 
row of six  b u ilt  in 1910, No. 2526, which immediately adjoins appellee 
Gorewitz's house, was owned and occupied by Negroes. Y.hile the suit  
was pending, one of the houses on the east side of Thirteenth Str et ,  
almost d irectly  opposite appellees ’ properties, was purchased by a 
Negro. A glance at tlw neighborhood shows the definite trend, both 
north and south on Thirteenth Street, of negro ownership and occupation.
On Thirteenth Street, from Logan Circle north to Florida Avenue, only 
one block away, some half dozen or more c ity  blocks are predominantly 
Negro, One block north of th< property a l l  the houses facing Fairmont 
Street, from Eleventh to Thirteenth, "re occupied by Negroes, and from 
that point north for  seven blooks tho intersecting streets arc almost





- 3 -

so lid ly  negro and. on the cast side cf Thirteenth Street, negro 
occupancy predominates, while on the west side of Thirteenth 
Street, north from Euclid, there are p. number of houses occupied 
by Negroes.

Ihe evidence s a t is f ie s  us that the e ffect  of a l l  this is  to make the 
market value of property on Thirteenth Street, in this particular block 
and nearby, greater for colored occupancy than for white. There is  
also evidence to the e ffec t  that the local citizen s association, upon 
learning that appellants' vendor contemplated s e l l in g  to appellants or 
other Negroes, tried  to procure a white purchaser, and that one of 
appellees himself had purchased the house numbered 2534 from Home 
Owners Loan Corporation for  $2,000 less than that Corporation was 
offered by a colored bishop.

Furthermore, apart from the market Vcalue of the property, which, 
as wo have- seen, is  not the only te s t ,  the present appellees are not now 
enjoying the advantages xvhich the covenant sought to c onfor. The 
obvious purpose was to keep the neighborhood white. But the s tr ic t  
enforcemrnt of a l l  f iv e  covenants w i l l  not a lte r  th. fact that the pur­
pose has been e ssen tia lly  defeated by the presence of a negro family  
new living in an unrestricted house in the midst of the restricted  
group, and as well by the ownership by another Negro of a house 
almost d ire ctly  across the s tr e e t .  And this is  ju st  the beginning.

The trend is  unmistakable, i t s  e ffec t  is  apparent, and w eere brought 
to conclude that to grant an injunction enforcing the covenant would 
merely depreciate a l l  the property in th: block without accomplishing 
the purpose which orig in a lly  impelled i t s  making, while to deny an 
injunction w ill  leave a l l  c f  the properties with a value commensurate 
to the conditions as they now e x is t .  In these circumstances the 
equities require that we refuse injunctive r e l ie f  and leave the parties  
to such remedies as they may have at law, Osius v. Barton (F la).
147 So. 862; McClure v. Lcaycraft, 183 N.Y. 36, 75 N.E. 961; Clark 
v. Vaughan (Kan.j , 292 Pac. 783, Pickci v. Me Cawley (Mo,), 44 8 .F .  
l 2 d j  857.

ITe have carefu lly  reviewed Castlc-man v. Avigncne, 56 App. D. C.
253; Corni sh v. O 'Dcnoghue, 58 Arp. D. C. 359; Ken. aly  v. Chevy Chase L. 
Co. ,  63 App. D. C. 327; Grady v. Garland, 67 App. E. C. 73, and 
Jameson v . Brown, 71 A p .  D. C., 254, in which covenants wore uphold, 
and arc of opinion that while they are opposite, t h y  are distinguish­
able •

Reversed and r. mand d for a now tr ia l  in accor ance with this opinion.

RUTLEDGE, J. I concur in the r suit for  th r ason that, i f  such 
a covenant as is  involved in this c^so is  valid  in any circumstanc s , rs 
to which I express r.o opinion, i t  is  not valid o r  enforceable in th con­
ditions shown on the pr sent record and stated in the '•pinion f  the 
ocurt.





A P P E N D I X





INDEX TO APPENDIX

Pleadings and Other Papers

Page
Complaint____________________________________________ 1
Answer (as amended)_________________________________ 6
Stipulation __________________________________________  10
Motion for leave to file supplement to answer and

affidavit___________________________________________  11
Affidavit in support of motion_________________________  12
Order overruling motion______________________________  13
Findings of Fact and Conclusions of Law_____________  13

Findings of Facts_________________________________ 13
Conclusions of Law_______________________________ 15

Judgment ____________________________________________ 19

Testimony

Transcript of Testimony_______________________________ 21
Bogikes, Marian 0 _________________________________  39-77
Fleet, Lauren________________________________________  79
Frasier, E. Franklin___________________________________  83
Gorowitz, Rebecca____________________________________  23
Holmes, Patrick D .___________________________________  44
Hundley, Frederick F . ________________________________ 70
Hundley, Mary G .____________________________________  67
Lankford, John A _____________________________________  80
Ring, Jam es_________________________________________  63
Wood, Sparrel A ._____________________________________  53
Tender of Proof as to Cycle of Real Estate Develop­

ment ----------------------------------------------------  65-66, 83 et seq.

Statutes

United States Constitution, Amendment V_____________  86
United States Constitution, Amendment XIII, Section 1 86
Civil Rights Act, U. S. Code, Title 8, Section 41__________  86
Home Owners Loan Act, U. S. Code, Title 12, Section 1461 

et seq_______________________________________________  87



'



A P P E N D I X

C O M P L A I N T  F O R  I N J U N C T I O N

The plaintiffs respectfully represent to this Honorable 
Court, as follows:

1. That plaintiffs are citizens of the United States and 
residents of the District of Columbia.

2. That the defendants are citizens of the United States 
and residents of the District of Columbia.

3. That defendants, Frederick F. Hundley and Mary G-. 
Hundley, are the present owners of record, as tenants by 
the entirety, of a certain parcel of real estate in the Dis­
trict of Columbia, described as: “ Lot numbered Seventy- 
seven (77) in Harry B. Willson’s subdivision of lots in 
Block numbered Thirty (30), ‘ Columbia Heghts’, as per 
plat recorded in the Office of the Surveyor for the District 
of Columbia in Liber 38 at folio 174” , and now known as 
Lot 821 in Square 2866, with improvements known as 2530 
13th Street, Northwest.

4. That the plaintiff, Rebecca Gorewitz, is the owner in 
fee simple and the occupant of Lot 822, Square 2866, im­
proved by 2528 13th Street, Northwest. The plaintiffs, Paul 
W. Bogikes and Marion 0. Bogikes, are the owners in fee 
simple, as tenants by the entirety, and occupants of Lot 75, 
Square 2866, improved by 2534 13th Street, Northwest. 
Plaintiffs are persons of the White race. Defendants Fred­
erick F. Hundley and Mary G. Hundley, his wife, are per­
sons of the Negro race or blood and are occupying said 
2530 13th Street, Northwest.

5. That all the real estate described herein as being 
owned by the plaintiffs and defendants is located on the 
West side of Thirteenth Street, Northwest, between Clifton 
and Euclid Streets in the District of Columbia; that all 
of the properties herein described were erected and sold 
by or through Harry B. Willson and Harry Wardman, as 
joint tenants; that said properties, as well as Lots 820,



2

823 and 824, all of which front on Thirteenth Street, were 
erected and sold through said Willson and Wardman, and 
said group of houses is known as “ Harry B. Willson’s 
subdivision of lots in Block numbered Thirty (30) ‘ Colum­
bia Heghts’, as per plat recorded in the Office of the Sur­
veyor for the District of Columbia in Liber 38 at folio 174” ; 
that said Willson and Wardman sold the same by and 
through the usual form of deed in which the following 
covenant, running with the land, has appeared in the deeds 
to all the properties in said subdivision, with the exception 
of the deed to lot 823, including the properties now owned 
by the plaintiffs herein and the property now owned and 
occupied by the defendants, Frederick F. Hundley and 
Mary G. Hundley, all or which said deeds were duly rec­
orded among the land Records of the District of Columbia:

“ 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 ($2,000.00), which shall be a 
lien against said property.”

6. That by deed, dated September 29, 1910 and recorded 
October 4, 1910, in Liber 3364 at folio 214 of said Land 
Records, Harry B. Willson and Harry Wardman conveyed 
said Lot 821, Square 2866 (Lot 77, Block 30 “ Columbia 
Heights” ) to William A. Folger and Rebekah Folger, his 
wife. Thereafter, by mesne conveyances, the defendant, 
Nelson D. Holmes, became the owner of said property 
by deed from the Home Owners’ Loan Corpora­
tion recorded among said Land Records on January 13, 
1941 as Instrument No. 1185. By deed, dated January 17, 
1941 and recorded among said Land Records on January 
23, 1941, as Instrument No. 2419, said defendant, Nelson D .  
Holmes, a person of the white race, conveyed said property 
to the defendants, Frederick F. Hundley and Mary G. 
Hundley, and the said deed contains the language: “ Subject 
to the covenants of record” .



3

7. That all the properties in said 2500 Block of 13th 
Street, Northwest, are now owned and occupied by persons 
of the White race except the property the subject-matter 
of this suit and 2526 13th Street, Northwest, the owner­
ship and occupancy of which is now the subject of suit in 
this Court in Civil Action No. 10551.

8. That on March 14, 1941 the plaintiffs caused written 
notices to be sent by registered mail, postage prepaid, to 
the defendant Holmes and defendants Hundley notifying 
each of them that said conveyance, ownership and occu­
pancy are in contravention of the covenant restriction. 
Plaintiffs aver that defendants Hundley and Holmes are 
charged by law with notice and knowledge of said coven­
ant of record herein set forth, running with the land; that 
all of said defendants, before accepting said deed and be­
fore the defendants Hundley moved into said property, 
did have actual knowledge of said covenant of record; and 
that the defendants knowingly and willfully consummated 
the transaction and the defendants Hundley became the 
owners and occupants of said property in contravention 
of said covenant of record, which has never been abrogated 
or nullified and is now in full force and effect.

9. That said parcels of real estate herein described and 
belonging to plaintiffs were each acquired by said plain­
tiffs, respectively, subject to and restricted by said cov­
enant of record; that all the plaintiffs and defendants de­
rive title either directly or by mesne conveyances from 
Harry B. 'Willson and Harry Wardman; that all of the 
plaintiffs purchased his, her or their said dwellings upon 
the advice and under the belief that said covenant was 
binding upon said plaintiffs as well as upon owners of all 
property in the portion of Square 2866 developed by said 
Willson and Wardman, and that all of said property was 
subject to the same covenant and restriction; that said 
neighborhood is residential in character and the property 
located therein is of good value.



4

10. Plaintiffs aver that the above mentioned deed and 
conveyance of Lot 821, Square 2866, and improvements 
thereon, from Nelson D. Holmes to Frederick F. Hundley 
and Mary G. Hundley, his wife, persons of the Negro race 
or blood, are a nullity and of no effect, and said deed and 
conveyance confer no property rights upon said defend­
ants Hundley for the reason that they unlawfully and will­
fully acquired said deed and accepted said conveyance in 
violation of the aforesaid covenant of record; that the con­
tinued occupancy of said property by the defendants 
Frederick F. Hundley and Mary G. Hundley, as well as to 
permit the deed and conveyance from said Nelson D. 
Holmes to Frederick F. Hundley and Mary G. Hundley to 
remain a matter of record, and said grantees to continue 
the owners and occupants of said property, will be injur­
ious, depreciative and absolutely ruinous of the real es­
tate owned by plaintiffs and will be harmful, detrimental 
and subversive of the peace of mind, comfort and property 
rights and interests of plaintiffs and of other property 
owners, and said nieghhorhood will become depreciative 
in value, and undesirable as a neighborhood wherein white 
people may live; that the continued occupancy and/or 
ownership by the defendants Frederick F. Hundley and 
Mary G. Hundley, or any person or persons of the Negro 
race or blood, will constitute a continuing wrong and in­
jury that is irreparable, and is incapable of ascertainment 
and compensation in damages, and the only adequate 
remedy is by way of injunction.

WHEREFORE, plaintiffs demand:
1. That the defendants Frederick F. Hundley and 

Mary G. Hundley be enjoined, during the pendency of 
this suit, and permanently thereafter, from selling, 
renting, leasing, transferring or conveying premises 
2530 13th Street, Northwest, in the District of Colum­
bia, to Negroes or colored persons or persons of the 
Negro race or blood, and from permitting said prem­
ises to be occupied by said Negroes or persons of the 
Negro race or blood.



5

2. That the defendants Frederick F. Hundley and 
Mary G. Hundley be enjoined, pending this suit, and 
permanently thereafter, from occupying premises 2530 
13th Street, Northwest, in the District of Columbia, 
and that said defendants, by order of this Court, be 
directed to vacate immediately said premises, and to 
remove therefrom all household goods and other prop­
erty belonging to said defendants.

3. That the deed dated January 17, 1941 and re­
corded January 23,1941 as Instrument No. 2419 among 
the Land Records of the District of Columbia from 
the defendant Nelson D. Holmes to defendants Fred­
erick F. Hundley and Mary G. Hundley, his wife, be 
cancelled, and a judgment be entered herein declaring 
said conveyance void and of no effect, and further de­
claring title to be in Nelson D. Holmes, subject to the 
restrictions of the covenant of record herein set forth.

4. That plaintiffs have judgment for costs, and 
that a reasonable attorneys’ fee be allowed.

5. That they be allowed such other and further re­
lief as shall be required.

Rebecca Gorewitz (Seal) 
Paul W. Bogikes (Seal) 
Marion 0. Bogikes (Seal)

District of Columbia, ss:

Rebecca Gorewitz, on oath deposes and says that she is 
one of the plaintiffs in this cause and she has read the 
aforegoing complaint by her subscribed; that the state­
ments therein made are true to the best of her knowledge, 
information and belief.

Rebecca Gorewitz, (Seal)
Subscribed and sworn to before me this 5th day of April, 

1941.
V incent P. Boudren,

Notary Public, D. C.
Henry Gilligan (Seal)
James A. Crooks (Seal)

Attorneys for Plaintiffs



6

ANSWER (As Amended)

Defendants Frederick F. Hundley and Mary Gr. Hund­
ley answer the complaint and motion for injunction pen­
dente lite as follows:

1-3 They admit the allegations of paragraphs 1-3.

4. They admit that the occupancy and record titles 
stand in plaintiffs as alleged, but lack the information or 
knowledge necessary to a belief and therefore can neither 
affirm nor deny that plaintiffs are of the white race but 
call for strict proof if the same be material. They admit 
they are Negroes and are occupying premises 2530 13th 
Street, Northwest.

5. They admit the allegations of paragraphs 5.

6. They admit that Wilson and Wardman conveyed to 
Folger and wife as alleged; that the Home Owners Loan 
Corporation conveyed to Nelson D. Holmes and that 
Holmes conveyed to them with the deed reciting “ subject 
to the covenants of record” . They lack the information 
or knowledge necessary to a belief, and therefore can 
neither affirm nor deny that Holmes is of the white race 
but call for strict proof if the same be material.

7. They lack information or knowledge necessary to 
a belief and therefore can neither affirm nor deny the al­
legations of paragraph 7 except as to the occupancy of 
their own premises and of premises 2526 13th Street, 
Northwest, but call for strict proof if the other allega­
tions be material.

8. They admit they received the written notice charged 
and that they knew of the existence of the covenant of 
record prior to accepting the deed from Holmes, but state 
that the remaining allegations of said paragraph contain 
conclusions of law which they are not bound to answer and 
do not answer.



7

9. They admit the allegations that the neighborhood is 
residential and the property therein of good value. They 
lack the information or knowledge necessary to a belief 
and therefore can neither affirm nor deny the circum­
stances under which plaintiffs purchased, but call for 
strict proof if the same be material. They deny they took 
or hold their property subject to the covenant of record.

10. They deny the allegations of damage or injury to 
plaintiffs jointly or severally or to the neighborhood by 
their ownership or occupancy of their property, and state 
that since purchasing their property they have spent more 
than $2,000.00 improving it and it is now one of the most 
desirable properties in the block, comparable in every re­
spect to the properties of the plaintiffs. They are advised 
the remaining allegations of the paragraph state conclus­
ions of law which they are not bound to answer and do not 
answer.

First Defense

The covenant in question constitutes an unlawful re­
straint on alienation and is void ab initio, and as a per­
petual restraint on alienation is against public policy and 
void.

Second Defense

The law will not decree specific performance of this cov­
enant for that the records show that Wilson and Ward- 
man built and sold six houses as a single development in 
1910; said properties then being contiguous lots known as 
Lots 75 to 80 inclusive in Columbia Heights, Block 30. 
They sold some of the lots with deeds containing the cov­
enant in question. At the same time as a part of the orig­
inal plan they sold lot 79 which adjoins Lot 78, owned by 
plaintiff Gorewitz, without any covenant and with unre­



8

stricted right of alienation and occupancy. Said Lot 79 is
now owned and occupied by Negroes. Defendants specifi­
cally deny there ever was any scheme or plan to perpetuate 
this development as a white residential area.

Third Defense

Defendants deny that there is any neighborhood created 
by the properties under the covenant herein sued on. 
Further they state that about 1928 plaintiffs and others 
tried to get a restrictive covenant signed by the property 
owners of the block which would blanket the block as a 
white residential area, but were unsuccessful and a large 
number of owners in the block refused to sign such a re­
strictive covenant. An injunction against these defendants 
would not guarantee the block, or even the small six lot 
segment developed by Wilson and Wardman to be a white 
residential area, and the law will not act where the very 
purpose and object of the action cannot be attained.

Fourth Defense

Defendants derive title by mesne conveyance from the 
Home Owners Loan Corporation, an agency of the sov­
ereign government of the United States. The sovereign 
cannot be and is not bound by a private covenant between 
citizens; so that the covenant was extinguished when title 
to the property became vested in the United States thru 
its agency the Home Owners Loan Corporation.

Fifth Defense

The covenant after being extinguished by title vesting in 
the United States thru its agency the Home Owners Loan 
Corporation could not be revived by a mere recital in the 
deed that it was “ subject to covenants of r e c o r d And 
defendants purchased in good faith on advice of their then



9

counsel that the covenant in question was void and of no 
effect.

Sixth Defense

Plaintiffs are barred by laches for that they permitted 
Negroes to occupy premises 2526 13th Street, Northwest, 
one of the houses in the small development for many 
months prior to defendants’ purchase of their property, 
without objection of any kind, and acquiesced in such oc­
cupation.

Seventh Defense

Plaintiffs are estopped from asserting any objection 
against defendants owning or occupying their property for 
that plaintiffs by permitting another Negro family to oc­
cupy premises 2526 13th Street, Northwest, for months 
prior to defendants’ purchase, peaceably and without pro­
test, did represent to defendants that there was no objec­
tion to Negroes owning and residing in said houses pro­
vided they were otherwise individually acceptable; that 
they meant for defendants to act upon such representa­
tions, and in good faith relying thereon defendants did 
purchase their property, spend large sums improving the 
same, and move into and occupy it.

Eighth Defense

Since plaintiffs purchased their properties the neigh­
borhood and area have become distinctly a mixed neigh­
borhood and area of white and Negro residents.

Ninth Defense

After acquiring a paramount title the United States 
Government through the Home Owners Loan Corporation



10

could not pass on to one citizen a title excluding a whole 
class of citizens from becoming purchasers and occupiers 
of said property without violating the due process clause 
of the Fifth Amendment to the Constitution of the United 
States.

Wherefore defendants pray that the complaint be dis­
missed with costs.

H o u s t o n , H o u s t o n  & H a s t ie ,
By C h a r l e s  H . H o u s t o n , 
Attorneys for Defendants

STIPULATION

It is stipulated by and between counsel for the plaintiffs 
and the defendants Hundley, in the above-entitled cause, 
as follows:

1. The plaintiffs and the defendants Hundley are all 
owners of property in Harry B. Willson’s subdivision of 
six lots in Square 2866. Said properties were conveyed 
by Harry B. Willson and Harry Wardman, the original 
builders, and the date of each of said original deeds and 
the date of recording thereof are as follows:

Lot 823, deed dated July 12, 1910, recorded August 
16, 1910, Ins. No. 1.

Lot 824, deed dated Sept. 13, 1910, recorded Sept. 
19, 1910, Ins. No. 42.

Lot 820, deed dated Sept. 17, 1910, recorded Sept. 
23, 1910, Ins. No. 26.

Lot 822, deed dated Sept. 27, 1910, recorded Sept. 
28, 1910, Ins. No______

Lot 75, deed dated Sept. 28, 1910, recorded Oct. 5, 
1910, Ins. No. 83.

Lot 821, deed dated Sept. 29, 1910, recorded Oct. 4, 
1910, Ins. No. 23.

2. Each of the above described deeds, excepting that



11

to Lot 823, contains a covenant in the following wording:

“ 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 ($2,000.00), which shall be a 
lien against said property.”

3. By deed dated January 17, 1941 and recorded on
January 23, 1941, as Instrument No. 2419, the defendant 
Nelson D. Holmes conveyed Lot 821, Square 2866 to the 
defendants Hundley, as tenants by the entirety, the deed 
containing the language: “ Subject to the covenants of
record.”

4. The defendants Hundley are persons of the Negro 
race or blood.

J. A. C r o o k s , Attorney for Plaintiffs. 
H o u s t o n , H o u s t o n  & H a s t ie ,

Attorneys for defendants H u n d l e y .

MOTION FOR LEAVE TO FILE A SUPPLEMENT 
TO ANSWER UNDER FEDERAL RULE 15 (d)

Defendants Hundley move the Court for leave to tile a 
supplement to the Third Defense in their Answer by in­
serting the following before the last sentence under said 
heading. The matters involved here occurred since the An­
swer was filed, and have material bearing on the defense 
made herein:

The covenant also purported to cover the east side 
of 13th Street between Clifton & Euclid Street (Square 
2865), houses which face the properties of plaintiffs; 
but at least the owners of three properties on the east 
side of the 13th Street refused to sign. One of the 
properties whose then owners, Otho W. Hammond and 
wife, Florence V. Hammond, refused to sign, was the



12

parcel known as Lot 16 and part of Lot 17, Square 
2865, improved by a large dwelling house 2523 13th 
Street, Northwest, (picture of which is hereto at­
tached). On September 27, 1941, they sold and con­
veyed said property to Joseph Kassner by deed re­
corded October 2, 1941, instrument No. 33726, in the 
office of the Recorder of Deeds for the District of Col­
umbia. On November 19, 1941, Joseph Kassner under 
an assignment of a certain contract of sale sold and 
conveyed said property to Gertrude Savoy by deed 
recorded November 24, 1941, instrument No. 40,358. 
Gertrude Savoy is a Negro. Said property is used as 
a rooming house, at present occupied by whites.

H o u s t o n , H o u s t o n  & H a s t ie , 
By C h a r l e s  H . H o u s t o n ,

Attorney for Defendants.

AFFIDAVIT IN SUPPORT OF MOTION

D is t r ic t  op  C o l u m b ia , ss :
C h a r l e s  H. H o u s t o n  being first duly sworn on oath 

states that he has checked the records in the office of Re­
corder of Deeds in the District of Columbia and that the 
deeds listed in the Motion for Leave to File a Supplement 
to Answer under Federal Rule 15 (d) appear of record 
there as stated; that he knows Gertrude Savoy is a Negro; 
that Otho W. Hammond was the record owner of Lot 16 
and part of Lot 17 in Square 2865 improved by premises 
2523 13th Street, Northwest, in and prior to 1928.

C h a r l e s  H . H o u s t o n .

Subscribed and sworn to before me this..............day of
November, 1941.

Notary Public, D. C.

Points and Authorities

Federal Rules of Civil Procedure, Rule 15 (d)



13

ORDER OVERRULING MOTION FOR LEAVE TO 
FILE SUPPLEMENT TO ANSWER

Upon motion of defendants Hundley for leave to file a 
supplement to their answer, the Court being of opinion that 
the matters sought to be presented by way of supplement 
are immaterial, it is this 1st day of December, 1941, 
O rd ered

That the motion be, and it is hereby, denied.

M a t t h e w  F. M cG u ir e , 
Justice.

FINDINGS OF FACTS AND CONCLUSIONS 
OF LAW

This is an action brought by Rebecca Gorewitz and Paul
W. and Marion 0. Bogikes against Frederick F. and Mary
G. Hundley and Nelson D. Holmes to enjoin the leasing or 
conveyance of certain real estate in the District of Colum­
bia, to compel the defendants Hundley to vacate the same, 
and seeking a judgment declaring the conveyance of the 
real estate referred to, by the defendant Holmes to the 
defendants Hundley null and void.

Findings of Facts

The parties are citizens of the United States residing 
in the District of Columbia. The plaintiffs Gorewitz and 
Bogikes and the defendant Holmes are white persons, and 
the defendants Hundley are persons of the Negro race.

The plaintiff Gorewitz is the owner in fee simple and the 
occupant of Lot 822, Square 2866, improved by 2528 13th 
Street, N. W .; the plaintiffs Bogikes are the owners in fee 
simple as tenants by the entirety and occupants of Lot 75, 
improved by 2534 13th Street, N. W.

The defendants Hundley are the owners and occupants of



14

Lot 821 improved by 2530 13tb Street, N. W. Their im­
mediate grantor was the defendant Holmes, who received 
his title from the Home Owners’ Loan Corporation, an 
instrumentality of the Government of the United States, 
and who subsequently conveyed to the defendants Hundley 
“ subject to covenants of record.”

All of the parcels of real estate referred to were acquired 
by both plaintiffs and defendants by mesne conveyances 
from Harry B. Willson and Harry Wardman as joint ten­
ants, and are located on the west side of Thirteenth Street, 
N. W., between Clifton and Euclid Streets in the District of 
Columbia.

These properties as well as Lots 820 (76), 823 (79) and 
824 (80), all of which front on Thirteenth are known as 
“ Harry B. Willson’s subdivision of lots in Block num­
bered Thirty (30) Columbia Heights,”  and duly recorded 
by plat in the office of the Surveyor for the District.

In all of the deeds of conveyance from Willson and 
Wardman, with the exception of that to Lot 823 (79), the 
following restrictive covenant appeared.

“ 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 ($2,000.00), which shall be a lien 
against said property.”

This particular lot 823 (79)—the first lot sold out of 
the six by Willson and Wardman—which is located adja­
cent to and immediately to the south of Lot 822 (78) owned 
by the plaintiff Gorewitz came by mesne conveyance into 
the possession of one Fleet who is the owner in fee simple 
and occupant thereof and a member of the Negro race.

It also appeared and is found as fact that the defendants 
Hundley took with knowledge of the restrictive covenant 
herein referred to and as a matter of fact agreed to save 
their grantor Holmes harmless from any legal action which 
might possibly be brought against him by reason of the



15

same, evidencing their intention so to do by agreement in 
the contract of sale.

The area adjacent to the property here in question is 
residential in character, consisting of row houses and sev­
eral large apartment buildings and the occupancy thereof, 
with respect to white and colored people, is found as a 
fact to be as shown by plat of the area stipulated by coun­
sel and appearing in the record. There has been some 
occupation by Negroes on the side streets adjacent to 13th 
Street, in the general area in the last 15 years.

Defendants Hundley have spent about $2,300.00 improv­
ing 2526 13th Street, since their purchase thereof.

Conclusions of Law

With reference to the contention that restrictive cove­
nants of the kind referred to constitute an unlawful 
restraint on alienation and therefore are void ab initio, 
the validity of covenants and agreements of this nature 
have been generally upheld, especially in this District.

It is axiomatic that such restrictions constitute valid 
and solemn contracts which ordinarily will not be lightly 
set aside.

Nor does the fact that for some time there has been 
colored occupancy of Lot 823, adjacent to that of one of 
the plaintiffs affect the situation, which lot was sold by 
the original grantors and came down through mesne con­
veyances to the present occupant without written restric­
tion. A  general scheme of improvement or development 
may exist although a part of the lots may have been sold 
without the restriction.

With reference to the defense that this action cannot be 
maintained unless there is a general scheme for the im­
provement of the property and the restrictions were in all



1 6

the deeds, it is held, that where an owner divides a tract 
of land into building lots and, as a part of a general scheme 
for its improvement, inserts in the deeds of sale of all the 
several lots uniform restrictions as to the purposes for 
which the land may be used, such provisions inure to the 
benefit of the several grantees who may enforce them in 
equity each for himself against the others. The fact that 
the original grantors had conveyed one lot without restric­
tions, was not very significant.

While it has been often held that where an owner divides 
a tract of land into building lots and, as a part of a general 
scheme for its improvement, inserts in the deeds of sale 
of all the several lots uniform restrictions as to the pur­
poses for which the land may be used, such provisions 
inure to the benefit of the several grantees, who may en­
force them in equity, yet the criterion in this class of cases 
is the intent of the grantor in imposing the restrictions, 
whether they are intended for his personal benefit or for 
the benefit of the lot owners generally; and his intention 
is to be gathered from Ms acts and the attendant circum­
stances. If this sufficiently appears, the fact that as to 
some lots there are no restrictions simply takes those lots 
out of the general scheme, and it is not necessary that the 
restrictions should be exactly the same in all the deeds. 
The evidence indicates a general scheme of development.

There is no merit in the defense that inasmuch as the 
defendants derived title by mesne conveyance from the 
Home Owners’ Loan Corporation, that the Government in 
fact became the owner of the property and that the cove­
nant became extinguished when the title vested in the 
Corporation. The Home Owners’ Loan Corporation is as 
its title indicates, a corporate instrumentality of the United 
States and is a corporate instrumentality with authority 
to sue and be sued in any competent jurisdiction, Federal 
or State, all of its capital stock being subscribed to and 
owned by the Government of the United States.

When a government becomes a partner in any trading



17

company, it divests itself, so far as concerns the trans­
actions of that company, of its sovereign character, and 
takes that of a private citizen. Instead of communicating 
to the company its privileges and its prerogatives, it de­
scends to a level with those with whom it associates itself, 
and takes the character which belongs to its associates, 
and to the business which is to be transacted. A govern­
ment never exercises its sovereignty in such a situation. 
It acts merely as a corporator, and exercises no other 
power in the management of the affairs of the corporation 
than are expressly given by the incorporating act.

Notwithstanding the fact that all of its stock was ow ed  
by the United States, it is a separate entity.

What has been said with reference thus to the fourth 
defense may also be said with emphasis in the matter of 
the fifth, namely, “ that the covenant was extinguished 
when title to the property became vested in the United 
States through its agency the Home Owners’ Loan Cor­
poration.”

Laches—It is, of course, true that a complainant seeking 
equitable relief against the violation of a restrictive cove­
nant must act promptly upon the discovery of the ground 
for complaint, as otherwise his laches may bar his right to 
relief. There is no hard and fast rule as to what consti­
tutes laches. The laches raised in this case is that the 
defendant took title to the property on January 7, 1941, 
by deed from Holmes, and this deed was recorded January 
23, 1941, and that on March 14, 1941, the plaintiffs caused 
written notices to be mailed both to the defendants ’ grantor 
and the defendants, advising them that the conveyance in 
question was allegedly in violation of the covenant restric­
tion. It was evidenced at the trial that the defendants 
knew of the covenant restriction, and as a matter of fact, 
by writing on the agreement of sale purported to release 
their grantor Holmes from liability thereunder. There is 
no question but what it would be contrary to equity and 
good conscience to enforce such a restriction if a defend­



18

ant had been led to suppose by word, silence, or conduct 
of the plaintiffs that there is no objection to his opera­
tions, as diligence is an essential prerequisite to equitable 
relief of this nature. Quiescence will be a bar when good 
faith requires vigilance, but so long as there is no know­
ledge of the wrong committed and no refusal to embrace 
opportunity to ascertain facts, there can be no laches. On 
the facts presented, the plaintiffs acted as seasonably and 
as expeditiously as possible when the alleged violation of 
the restriction was brought to their attention. Mere lapse 
of time, although important, is not necessarily a decisive 
consideration. As a matter of fact, within the somewhat 
rather flexible limitations of what appears to be the gen­
eral rule above referred to—what may be laches in any 
case depends upon its peculiar facts.

Nor can the plaintiffs be barred for laches because 
Negroes occupied Lot 823, because said lot was never sub­
ject to the restriction, and as a consequence the plaintiffs 
had no rights with respect to same, and the defense of 
estoppel fails for the same reason.

While it may be true that the general area over a period 
of time has become what might be termed a mixed neigh­
borhood of whites and Negroes, there has not been such a 
change in the immediate neighborhood as evidenced by 
the plat submitted by stipulation of the parties as to war­
rant equity to take cognizance of the fact that the enforce­
ment of the covenant in question would be oppressive and 
that it would be inequitable to give it effect.

The ninth defense which states, “ After acquiring a para­
mount title the United States Government through the 
Home Owners’ Loan Corporation could not pass on to one 
citizen a title excluding a whole class of citizens from 
becoming purchasers and occupiers of said property with­
out violating the due process clause of the Fifth Amend­
ment to the Constitution of the United States”  fails because



19

of what has been said with respect to the fourth and fifth 
defenses.

Dated: Dec. 1, 1941 M a t t h e w  F .  M c G u ir e ,

Justice

JUDGMENT FOR PERMANENT INJUNCTION

This cause came on to be heard, and thereupon, upon 
consideration thereof, and it appearing to the Court that 
the restrictive covenant running with the land known as 
Lot 821 in Square 2866, improved by premises 2530 13th 
Street, Northwest, in the District of Columbia, created by 
deed dated September 29, 1910 and recorded October 4, 
1910 in Liber 3364 at folio 214 of the Land records of the 
District of Columbia, providing that said land shall never 
be rented, leased, sold, transferred or conveyed unto any 
Negro or colored person, is in full force and effect; and it 
further appearing to the Court that the defendants, Fred­
erick F. Hundley and Mary G. Hundley, his wife, are Ne­
groes or colored persons and are the owners and occupants 
of said land and premises; and that the defendant, Nelson
D. Holmes, a person of the White race, was the owner of 
record who sold and conveyed said land and premises to 
the defendants Hundley in violation of the provisions of 
said restrictive covenant; and that the defendants Hund­
ley own and occupy said land and premises in violation of 
the provisions of said covenant, it is, by the Court this 1st 
day of December, 1941,

ADJUDGED, that Frederick F. Hundley and Mary G. 
Hundley, his wife, be and they hereby are permanently en­
joined from ever owning, occupying, selling, leasing, trans­
ferring or conveying the land known as Lot 821 in Square 
2866, and the improvements thereon, in the District of 
Columbia; and it is further



2 0

ADJUDGED, that Nelson D. Holmes be and he hereby 
is permanently enjoined from ever selling, leasing, trans­
ferring or conveying the land known as Lot 821 in Square 
2866, and the improvements thereon, in the District of 
Columbia, to, or allowing the same to he occupied by, any 
Negro or colored person, and it is further

ADJUDGED, that the deed dated January 17, 1941 and 
recorded January 23, 1941 as Instrument 2419 among the 
Land Records of the District of Columbia be and it hereby 
is declared null and void and of no effect, and the title to 
said Lot 821 in Square 2866, with improvements thereon, is 
hereby declared to be in Nelson D. Holmes subject to the 
provisions of the restrictive covenant of record, aforesaid; 
and it is further

ADJUDGED, that Frederick F. Hundley and Mary G. 
Hundley, his wife, be and they hereby are ordered to re­
move themselves and all their personal effects from said 
land and premises within 120 days; and it is further

ADJUDGED, that Nelson D. Holmes be and he is hereby 
declared trustee for the defendants Hundley of the con­
sideration heretofore received by him from them on ac­
count of their purchase of the aforesaid property, and up­
on any sale of the same by said owner the purchasers are 
charged with the duty of seeing to the application of the 
purchase money to and for the benefit of the defendants 
Hundley; and until Nelson D. Holmes returns to the de­
fendants Hundley the consideration aforesaid, with legal 
interest from the date of this judgment, he shall further 
hold as trustee for the defendants Hundley the profits and 
income from said consideration in whatsoever form re­
ceived, less trustee’s commission of 5 per cent; and it is 
further

ADJUDGED, that taxable costs be assessed against the 
defendants, and each of them.

M a t t h e w  F. M cG u ie e ,
Justice.



21

TRANSCRIPT OF THE SHORTHAND REPORT OF THE 
PROCEEDINGS HAD OCTOBER 16, 1941

Tlie above-entitled cause came on for hearing on this the 
sixteenth day of October, 1941, before Honorable M a t t h e w

F. M c G u ir e , one of the justices of the District Court of the 
United States for the District of Columbia, whereupon the 
following proceedings were had, and testimony heard:

Appearances:

H e n r y  G il l ig a n , Esquire, and J a m e s  A .  C r o o k s , Es­
quire, appearing on behalf of the plaintiff.

C . H . H o u s t o n , Esquire, appearing on behalf of the 
defendants.

Upon the call of the case to trial by the Clerk, counsel 
for the plaintiff and defendants announced that they were 
ready to proceed.

Mr. Gilligan: If your Honor please, this is an action in­
volving the restrictive clause in certain deeds to property 
which the defendants bought from one Mr. Holmes. Mr. 
Holmes did not answer the complaint, and I presume so 
far as he is concerned we would be entitled to a judgment.

I think it would be well for your Honor to see this little 
map that we discussed when the matter of the preliminary 
injunction was before Judge Morris, when he advanced the 
case for trial.

The Court: That preliminary injunction was not granted ?
Mr. Gilligan: No, we agreed that it should not be. This 

is not the case heard the other day, your Honor.
The Court: I understand the counsel are the same?
Mr. Gilligan: Yes, counsel are the same. My name is 

Henry Gilligan, and this is Mr. Crooks, and Mr. Houston 
represents the defendants. We have a stipulation here that 
I think it might be well for your Honor to have before you, 
a stipulation agreed upon before the pre-trial Judge. Do 
you have it before you?

The Court: I have it.



22

Mr. Gilligan: I thought it would be well to have that 
before your Honor in explaining this case. I f  you will 
notice, on the left-hand side you will have before you the 
property involved. Here is Lot 59. That is not included 
in this suit. This suits concerns here (indicated), 820, 821, 
822 and 824. The stipulation will show you Lot 823, and 
if you will notice it is this piece of property, which was 
the first house sold. There are six houses there, and the 
first one sold was this Lot 823, and they did not put any 
restrictive provision in the deed as to color, but, in all of 
the other property, 820, 821, 822 and 824 the restrictive 
covenant was put in.

The Court: What was the date of the sale of 823?
Mr. Gilligan: That was sold under deed dated July 12, 

1910, which was recorded on August 16, 1910.
The next sale of record is two months after that time, 

and then they were all recorded pretty close together. The 
last one wms September 29. Two months intervened be­
tween the sale of the first one and the last one.

We will show you, or at any rate it is admitted that all 
of these deeds hold that provision as to color, and it is also 
stipulated that the defendant Huntley * and his wife are col­
ored people, and the property they took, they took in the 
face of the provision in the deed, and subject to the covenant 
of record. You will see that is admitted in the stipulation.

Now, your Honor, if we are able to show you the facts as 
we have outlined them, that these folks bought with the 
knowledge of that covenant, we will ask, out of the decisions 
we have in the District of Columbia that your Honor grant 
the injunction.

Mr. Houston: I do not want to make my opening state­
ment at this time. We demand strict proof, and we want 
to give the Court the benefit of all the facts.

I will defer my opening statement until I come to the pres­
entation of our case.

Mr. Gilligan: I will call Mrs. Gorowitz.*
* Correct spelling Hundley and Gorewitz.



23

Thereupon:
Rebecca Gorowitz,

was called as a witness by and on behalf of the plaintiff, 
and, having been first duly sworn, assumed the witness 
stand, and was examined and testified as follows:

Direct Examination 
By Mr. Gilligan:

Q. Mrs. Gorowitz, speak clearly so the Court will hear 
you. What is your name?

A. My name is Rebecca Gorowitz.
Q. Where do you live?
A. I live at 2528 13th Street, Northwest.
Q. Just where is that house in which you live in connec­

tion with the house occupied by the defendants, Mr. and 
Mrs. Huntley?

A. It is right next door to 2530.
Q. You are occupying one of these houses in the Wilker- 

son and Ward subdivision that has the covenant in the 
deed?

A. Yes sir.
Q. Is this the covenant, or the certificate of title you got 

when you bought the property?
A. Yes sir, this is the title.
Q. You bought the house when?
A. I bought the house in 1927.
Q. September 27, 1927?
A. Yes sir.
Mr. Gilligan: I call your Honor’s attention to the Certifi­

cate in the deed which recites that this property shall not 
be sold or used for the manufacturing or sale of spiritual 
liquors, or transferred or conveyed to any negro under pen­
alty of $2,000.00 which shall apply as a lien against the 
property. The same language appears in all of these deeds. 
Will your honor care to see this?

The Court: Are you offering this?
Mr. Gilligan: I offer this as plaintiff’s exhibit No. 1.



24

(The said deed so offered on behalf of the plaintiff, was 
marked “ Plaintiff’s Exhibit No. 1” .)

By Mr. Gilligan:
Q. What did you pay for your house?
A. $13,500.00.
Q. At the time you bought that house were you aware 

of the fact that there was a restrictive agreement against 
the sale to negroes, or occupancy by negroes?

A. Yes sir, I was. Mr. Davis sold me the house, and 
he told me that these particular houses were sold under a 
certain agreement never to be sold to colored people, and 
I took their word for it.

Q. Now, lets get to No. 2530 13th Street, regarding 
the purchase of that property by the Huntleys. Did you 
have any talk with Mr. and Mrs. Huntley and the defendant, 
Mr. Holmes, with reference to that proposed sale?

A. I have not spoken to Mrs. Huntley at all, but, I spoke 
to Mr. Huntley and he talked about putting in a new fence. 
I spoke to Mr. Holmes and also, the gentleman who was 
there when the house was inspected.

Q. Do you know what that gentleman is?
A. I think it is,—I don’t know his name, but, I know he 

must have been an agent for the real estate. He came to 
the house, and I said, “ what is it your wish to find out,”  
and he said, “ I wonder who owns this house,”  and I said, 
“ no matter who owns that house, you can find it out, but 
I am sure this house cannot be rented for colored people.”  
He said, “ I am not asking you that question, whether it is 
for colored people or what.”  Then I said that Mr. Holmes, 
or his son, young Mr. Holmes, he was there most of the 
time around the house when they were repairing it, I asked 
him to whom the house was sold, and he said, “ my dad 
bought it and is fixing it up for ourselves to live in,”  and 
I was very much pleased, and I did not bother about the 
people coming into my home to use the telephone for repairs 
and talking, for I did not want it like 2526; I tried to get 
these people out. Then at last I saw the house was fixed,



25

and I went out and asked the working people who was mov­
ing in the house. I still could not believe it. I tried to find 
out the truth, and they said that they thought colored people. 
But, Mr. Holmes had told me first he was fixing it as a home 
for him to move in.

Q. Did he say anything about whether or not there was 
a restrictive covenant in the deed?

A. No sir, he did not say anything. I told him I hoped 
they are not going to sell to colored people for these houses 
are restricted.

Q. Did you ever see this gentleman (indicating) in the 
company of Mr. and Mrs. Huntley?

A. Very often before they moved in, and in fact one night 
at 11:30 at night, Thursday night I saw that gentleman 
upstairs in the bedroom showing the house to people but, 
I do not know whether Mr. and Mrs. Huntley or not were 
colored people. I didn’t know exactly. He had been show­
ing the house at night. I saw the light upstairs. You can 
look right across, and when they talk over the telephone 
you can hear everything they say. The walls are very thin 
and close to each other.

Q. One other question, Mrs. Gorowitz, what is your color, 
white or colored?

A. My color, I am strictly white. I should say I am, for 
I was born in Poland, and I would like for you to look up 
in the Polish history, and you will never see any colored 
people. I never saw any colored people until I came to the 
United States.

Mr. Gilligan: You may cross-examine.
Cross-examination 

By Mr. Houston:
Q. Mrs. Gorowitz, you said that the real estate people 

told you that all of the houses were restricted.
A. Yes, all the row is restricted, while the fact is it was 

not, for they have got colored people there.
Q. Now, these are the houses, are they not (indicating) ?
A. Exactly, I know.



26

Q. There is Mr. Bagelly,* and there is where Judge 
O ’Toole’s house is?

A. Yes sir.
Q. What is that house (indicating) ?
A. That is my house.
Q. This is the Fleet and this is the Morosky house?
A. Yes sir.
Q. These six houses do not constitute the entire block, 

or the entire square?
A. Of course, there are more but, they are attached one 

to another in the whole line.
The Court: May I ask this question of counsel, these 

pictures represent the houses by plan number and street 
number ?

Mr. Houston: Yes sir.
(Thereupon there was a discussion at the bench between 

counsel for plaintiff and defendants and the court, which is 
not herein recorded by direction of the court.)

Mr. Houston: Now, if your Honor please, and Mr. Gilli- 
gan, may I suggest that you offer this diagram as plaintiff’s 
exhibit No. 2?

Mr. Gilligan: That will be a good idea. I offer that as 
plaintiff’s Exhibit No. 2.

(The said diagram so offered on behalf of the plaintiff 
was marked Defendant’s Exhibit No. 2.)

By Mr. Houston:
Q. Now Mrs. Gorowitz, there are houses in the block not 

included in this picture?
A. Which ones?
Q. The one at the corner of Thirteenth and Euclid.
A. No, it is not in that picture.
Q. That is number 59, Lot No. 59 on Plaintiff’s Exhibit 

No. 2, is not in the picture?
A. No sir.
Q. That is a very large house ?
A. Yes sir, it is a boarding house.
Q. About how many rooms in it?

* Correct spelling Bogikes.



27

A. I never was in there; I don’t know.
Q. In the neighborhood of fourteen rooms?
A. I have heard about fourteen rooms.
Q. Now, down below, the Borsk * house, that is next door 

to Mr. Huntley?
A. It is right next door to Mr. Huntley.
Q. Do you know how that house is used?
A. I don’t know, no sir.
Q. Now, 2530, that is Lot 65?
A. That is Mr. Huntley.
Q. How is that house used?
A. They are attached to each other.
Q. You understand, Mrs. Gorowitz, I am not trying to 

confuse you, but, I want to get at the facts. Now, is that 
a rooming house at 2522 ?

A. I don’t know.
Q. Have you ever heard it was ?
A. No.
Q. 2520, is that a rooming house or an apartment?
A. That is an apartment.
Q. Have you ever been in there ?
A. No sir.
Q. 2518?
A. That is Mr. H ill’s
Q. Do you know whether there are any roomers in there ? 
A. No roomers, but little apartments.
Q. Have you ever been in there ?
A. Yes sir, down stairs.
Q. Down stairs only?
A. Yes sir.
Q. 2516, is that where Mr. Hunter lives?
A. Yes, sir.
Q. Do they have roomers there?
A. Apartments, no roomers.
Q. Have you ever been in there?
A. Yes sir.
Q. 2514?

* Correct spelling Borowski.



28

A. That is Mr. Pentleton.
Q. They have apartments there?
A. I guess they have three apartments.
Q. Have you ever been in there?
A. No sir.
Q. On the corner there is a great big house?
A. Yes sir.
Q. That faces on Clifton Street?
A. Yes sir.
Q. That is Lot 51?
A. It is right by the Central High School.
Q. That is Lot 51 ?
A. Yes sir.
Q. What is that used for?
A. I don’t know, I have never been in there.
Q. Going across the street, take the house on the corner? 
A. That is a big apartment.
Q. On the corner of Clifton Street, there is a big apart­

ment there?
A. Yes, sir.
Q. Have you ever been in there ?
A. I have not been in there, but I have seen the apartment. 
Q. It is called the High View Apartments ?
A. It is called the High View Apartments, and the other 

one has a different name.
Q. The Costa Manor Apartments, next door to the High 

View Apartments, have you ever been in there?
A. No sir.
Q. The next house, 2523, what is that?
A. That is a rooming house.
Q. A  great big old fasioned frame house?
A. That is an old house.
Q. Have you ever been in there?
A. No sir.
Q. And the next house, 2525, what is that?
A. An apartment house.
Q. Have you ever been in there?



29

A. No sir.
Q. That is Lot 129 on Plaintiff’s Exhibit No. 2. Now, 

take 2523, that is an old frame building?
A. That is not a frame house. It is a nice house, it is a 

big nice house.
Q. It was a big old residence?
A. It was owned by a gentleman named Mr. Hammond, 

and they moved out, and for the past three years they put 
in a rooming house there. It was not a rooming house be­
fore that.

Q. But it is now?
A. Yes sir.
Q. It has been for the past three years?
A. Yes sir, I guess it is.
Q. Now, Lot 829, is that an apartment house too?
A. That is an apartment house too.
Q. Have you ever been in there?
A. No sir.
Q. Now, there are three single houses across the street. 

Have you been in them?
A. I have not been in the houses. There is one house 

that belongs to Captain Hedgwith.
Q. You have not been in this house?
A. No sir.
Q. Or the house on the corner?
A. No sir.
Q. Now, lets get back to this house (indicating). Who 

lives in this house ?
A. Mr. Bagley and Mrs. Bag-ley * and her step-mother.
Q. Judge O ’Toole’s house, who lives there?
A. Mr. Jernegan, and they put in private apartments, 

one single room and kitchen.
Q. Now, the people that live there do not own it, that 

belongs to Judge O ’Toole?
A. Yes sir.
Q. Now, the Huntley house comes in?
A. Yes sir.

* Correct spelling Bogikes.



30

Q. And your house?
A. Yes sir.
Q. No one lives in your house but your family?
A. No sir, just my married daughter, and my other 

daughter.
Q. Just your family?
A. Yes sir.
Q. Then comes the Fleet house next to you?
A. I don’t know for the Fleets. I knew him for seven 

months as Preston. They came in by the name of Preston 
and that young boy started speaking to me, and I took 
action to find out what they were doing in that house, and 
they were supposed to be white people, and I asked the boy 
what are they doing there, and he said Mr. Preston bought 
the house and he was his uncle, and he said, “ I am white,”  
and I said, “ no, you are not white, and I said, “ it makes 
no difference, hut what are you doing in the house,”  and 
he said they were cleaning up before they moved in, and 
he cleaned the windows on the porch and he said, “ Mr. 
Preston is my uncle, and he is putting us in the basement, 
and the house will be occupied by a Government employee.”  
the fact is, when they did move in they did move in a lot 
of young boys, but, they were funny people, colored people, 
terrible, and they talked such funny language, and it took 
seven months to find out who lived in that house, whether 
white or colored, such a mixture you could not tell, but, I 
saw it was the basement apartment they were in for a long 
time—

Q. Just a moment,—
A. and then I saw—
Q. (Interposing.) Just a moment, please, Mrs. Gorowitz. 

Please let me ask you a question. You saw Mr. Preston?
A. He came to my house.
Q. He was white?
A. He looked white.
Q. As a matter of fact you cannot tell when a person is 

white or colored?



31

A. I don’t know whether he was white or colored, Mr. 
Preston.

Q. You didn’t ask him?
A. He looked white; I never thought of asking him.
Q. How could you tell whether Mr. Preston was white 

or colored?
A. I can see it. I can say, Mr. Houston you are colored, 

and there are no white people over there (indicating) some 
may be white.

Mr. Houston: Will you ladies stand up. Some of them 
are white and some are colored.

Q. Now, will you tell me which are white and which are 
colored?

A. I can’t tell but, it looks to me like they are all colored.
Q. They are all colored?
A. It looks to me like it.
Q. Do you want to come down and take a closer look?
A. I don’t want to. I got good eyes. I guess I am not 

blind. I can see it.
Q. Now, Mrs. Gorowitz you found out there was a mis­

take about all of these houses being under the covenant?
A. I didn’t find out there was such a mistake, only 2526. 

Still, they had the same. They didn’t have the property 
covenant, but they had a covenant.

Q. You found out that house 2526, the Fleet house, did 
not have the covenant of 1910?

A. They had the covenant of 1928 or 1929.
Q. Will you please just answer the question. You found 

that there was no 1910 covenant on the Fleet house?
A. I just found it out recently.
Q. You didn’t make any investigation of the neighbor­

hood property when you moved in?
A. No, I didn’t make any investigation, but, I asked my 

real estate man if these were strictly white people, and he 
said there were no colored homes from Colorado Road to 
Euclid.

Q. I am asking you whether you made any investigation



32

about the titles of those houses I showed you in the picture, 
did you make any investigation of any other house except 
your own?

A. I made an investigation when I bought, and I was 
sure everybody had the same thing.

Q. Would you have bought if you had found out that of 
the six houses that the one next to you did not have any 
restriction as to Negroes?

A. No sir, they could not have come in.
Q. You would not have bought?
A. No sir.
Q. That would have been cause in itself for you not to 

buy the house you are now in before you bought that house?
A. Yes sir.
Q. And you brought a suit against the people next door?
A. Yes sir, not only me—
Q. (Interposing) you brought a suit against them?
A. Yes sir.
Q. Is this suit entitled civil action 10551?
A. Yes sir.
Mr. Houston: I think Mr. Gilligan you will admit that?
Mr. Gilligan: Yes.
Q. You lost that case?
A. Yes sir, we lost that case.
Q. You never appealed it, did you?
A. No sir.
Q. Who helped you finance that case?
Mr. Gilligan: I do not know if that is competent.
The Court: She says she brought the suit and lost it.
Mr. Houston: I withdraw the question for I do not think 

I have laid the proper predicate.
By Mr. Houston:

Q. Now, the Negroes are still in there next to you?
A. You know it.
Q. You have had considerable trouble with these people?
A. They are still giving me trouble. They are giving me 

trouble every day.



33

Q. So those people have been objectionable to you as 
individuals ?

A. Yes sir.
Q. You have not bad any trouble with the Huntleys?
A. No sir, I don’t bother with anybody.
Q. You have bad no trouble with the Huntleys?
A. No sir.
Q. They have minded their own business, and so far as 

you know they have been respectable neighbors?
A. That is what you think.
Q. I asked you the question.
A. They are respectable people, yes, they are school­

teachers. Mr. Huntley is a perfect gentleman, but, Mrs. 
Huntley I don’t think so much of.

The Court: Just confine yourself to the question.
Mr. Gilligan: She should he allowed to answer the ques­

tion.
The Court: I do not understand that she has answered 

the question as asked. Head the question and answer the 
witness gave.

(Thereupon the reporter read the question and answer 
as follows:

“ Q. They have minded their own business, and so far as 
you know they have been respectable neighbors?

“ A. That is what you think.” )
By Mr. Houston:

Q. Why?
A. That is the answer I gave. I didn’t think so much 

of her. She is noisy and spiteful, and I believe she helped 
the Fleets, and she gave them all the information about the 
last case, and I heard her speak to them in their house.
I never saw Mr. Huntley mixing in.

Q. In other words, you do not like Mrs. Huntley?
A. I never spoke to her, never.
Q. Let me finish my question. You do not like Mrs. Hunt- 

ley, and as she has never done anything to you, but you 
have seen her speaking to the Fleets?



34

A. She has annoyed me too.
Q. What did she do?
A. She has kept me up at nights.
Q. What did she do to keep you up at nights ?
A. Laughing and carrying on around at one or two 

o ’clock in the morning, and she has got a little pet, and 
her husband is a hard-working man, and our windows are 
close and we can hear everything.

Mr. Gilligan: I am inclined to object to all of this testi­
mony. It should have some bearing on the issues here.

The Court: There is considerable leeway on cross-exam­
ination.

By Mr. Houston:
Q. When the Fleets moved into this house next door, did 

that change the character of the property so far as you were 
concerned.

A. It certainly changed it. The first thing when a colored 
person goes into a white block, the property goes down 
$2,000.00 That is one objection.

Q. How do you know it goes down?
A. I know it for I have been told.
Q. Just because you have been told, and you have not 

learned that from experience?
A. No sir, I know it runs down the property.
Q. Who did you learn that from?
A. From the real estate people that I deal with. They 

talked to me, and they explained to me that it drops the 
property $2,000.00 down.

Q. Did you learn that before you purchased your home 
or since.

A. No, it was recently, when the Fleets came in.
Q. When the Fleets came in?
A. Yes sir.
Q. And your objecton is that when Negroes come in your 

property depreciates?
A. Exactly.
Q. Is that your only objection?



35

A. That is my first objection, and the second objection is 
we do not want to live next door to colored people.

Q. Suppose you cannot get the Fleets out ?
A. I am still remaining in my home.
Q. You are still remaining in your home!
A. Yes sir, I have worked awfully hard and my husband 

is a sick man, and we have got to be there.
Q. Let me ask you this question, when a Negro comes 

into a neighborhood, do you consider it is no longer a white 
neighborhood !

A. It is hard to change from.
Q. I asked you the question, when a Negro conies into 

the neighborhood, like when the Fleets did, do you consider 
it is no longer a white group of homes ?

A. I don’t know. We are trying to make it to be white.
Q. Just answer my question, when Negroes move in, like 

the Fleet’s moved in, does that white neighborhood cease so 
far as being a white neighborhood!

A. It is still white, only those two houses.
Q. That is not my question.
Mr. Gilli gan: She has answered the question.
The Court: She was asked the question, when Negroes 

come in does that change the character of the neighborhood?
Mr. Gilligan: She has further said that it is a completely 

white neighborhood with the exception of these two houses 
occupied by colored people. She has also said that she is 
going to remain in her house.

By Mr. Houston:
Q. Now, -what do you consider there, Mrs. Gorowitz?
A. I consider that neighborhood,—I would like to see 

that neighborhood remain as it is.
Q. What do you call the neighborhood?
A. I call it a suitable neighborhood.
Q. What do you call the neighborhood,—down to Florida 

Avenue ?
A. I don’t know where it goes around in what you call 

the neighborhood. I know this particular block right by Cen­



36

tral High School where 100 children go by my house that 
are strictly white.

Q. So you are talking about the block, is that right?
A. Yes sir, I don’t want to know what is going on below 

or further up. I justed wanted to remain where I am the 
way it is if I can.

Q. You mean by that, those six houses?
A. No, the whole city, or the whole block.
Q. Now, you also know—
A. I am for the whole block.
Q. You also know now there are no other covenants on 

the other houses?
A. I don’t know. I don’t know the other people’s business. 

I don’t know anything about across the street; I only know 
mine.

Q. You do not know anything about that?
A. I don’t know.
Q. Now, there have been a lot of changes, and Negroes 

have come in, as you know, from Florida Avenue to Euclid?
A. No, Columbia Road to Euclid.
Q. Now, the neighborhood is practically colored from 

Columbia Road to Euclid?
A. There are still a number of whites in there.
Q. Will you please answer the question, there are a large 

number of Negroes that have come in?
A. I guess so; I don’t know; I haven’t looked into 

people’s houses to see whether they are white or colored.
Q. You have answered the question. What is the nature 

of 13th Street right there; 13th Street is one of the thor­
oughfares for automobile traffic by your house?

A. The Street has been widened. The street has been 
widened. They have always had the same traffic for the past 
14 years I have lived there. I have not seen any change.

Q. Now, coming to this suit,—you remember you made a 
complaint in the police court against Mr. Fleet?

A. Yes sir.
Q. Do you remember your testimony there?



37

Mr. Gilligan: I do not see that has anything to with this 
ease.

The Court: I do not understand the purpose.
Mr. Houston: The purpose is to impeach her statement 

about the Huntleys, and it has a bearing on the question 
of her attitude towards the Huntleys.

The Court: How is that relevant to the issue here ?
Mr. Houston: It is relevant on one of our defenses, that 

the matter of enforcement would be of no benefit to the 
plaintiff.

The Court: I exclude the question.
Mr. Houston: I will make tender of proof, if your Honor 

will permit me. I would prove that she testified in the 
police court to the effect that Mr. and Mrs. Huntley were 
perfect neighbors, and if the Meets had been like the Hunt- 
leys, there would not have been any suit started, and she 
had absolutely no objection to the Huntleys. That is the 
tender, if your Honor please, and your Honor’s ruling is 
that you exclude the proof.

The Court: Yes.
By Mr. Houston:

Q. Mrs. Gorowitz, if you were shown and it was proven 
to you that the moving in of Negroes into a neighborhood 
would not depreciate the value of your property, would that 
overcome one of your objections?

A. I do not understand.
Q. If you were shown that the moving in of Negroes would 

not depreciate the value of your property, would that re­
move one of your objections to Negroes?

A. No, indeed. I would still like to have my block white.
Mr. Houston: I have no further questions.

Redirect Examination 
By Mr. Gilligan:

Q. Mrs. Gorowitz, you were asked regarding 2526 13th 
Street, and the action brought in that case?

A. Yes sir.



38

Q. And the statement was that it was lost. On what was 
that action based?

A. Against the Fleets?
Q. Yes.
A. Also on the covenant.
Q. What covenant?
A. 1928. The gentleman that sold that house to Mr. Pres­

ton, I forget his name,—Mr. Moore,—Mr. Moore sold that 
house to Mr. Preston.

Q. On what was the suit based?
A. The suit was based on the covenant.
Q. That is not the covenant in this case?
A. Not this covenant, but a second covenant.
Mr. Gilligan: I would like to offer in evidence the findings 

of the Court and judgment in that case.
Mr. Houston: I am going to introduce the whole case.
Mr. Crooks: Apparently the findings of fact and conclu­

sions of law are not in the file. The judgment is, however.
Mr. Houston: I have no objection to the copy being 

read in.
The Court: Put the whole case in.
Mr. Gilligan: I would like to state that the covenant of 

1928 was a restricted agreement entered into by the prop­
erty owners on the block, and the restriction showed five 
houses not included in it. The reason for the dismissal of 
the suit was because the restrictive agreement contained a 
provision, and Justice Bailey held that the restrictive agree­
ment was not binding on 2526 and for that reason dismissed 
the bill.

The Court: May I ask counsel, is this Fleet house No. 
2526?

Mr. Gilligan: Yes sir.
The Court: That is part of the original tract that came 

down from 1910 ?
Mr. Houston: That is right.
Mr. Gilligan: It was the first house that was sold.
Mr. Houston: I was not going to make a statement until



39

I put on my evidence, but I think your Honor would get a 
better picture if I made a statement at this time.

The Court: I do not think it is necessary.
Mr. Gilligan: I merely brought this out at this time be­

cause of the inference in the questions asked.
That is all of this witness.
(Thereupon the witness was excused and retired from the 

witness stand.)
Thereupon

Marian 0. Bogikes
was called as a witness by and on behalf of the plaintiffs, 
and having been first duly sworn, was examined and testified 
as follows:

Direct Examination 
By Mr. Gilligan:

Q. You are one of the plaintiffs in this case?
A. Yes sir.
Q. You and your husband own what property?
A. 2534.
Q. 13th Street, Northwest?
A. Yes sir.
Q. When did you and your husband buy that property?
A. In June, 1940.
Q. And you were shown the house by whom?
A. By an HOLC representative.
Q. Do you know his name?
A. Mr. Nice.
Q. Was anything at all said at that time when he showed 

you the house about the Negro question?
A. He said he had a chance to sell the house at $2,000 

more to a colored bishop, but he was not allowed to do it, 
for there was a covenant, and that was why we come in 
there and bought so we could settle down the rest of our 
lives and raise our children, and we bought the house, and 
a month later a colored family moved in down there.

Q. Were there any colored people there at the time you 
bought the property, or at the time you moved in?



40

A. No sir, there were not in that block or around the 
corner.

Q. Did you look around the community pretty generally?
A. My mother and I walked around to look at all the 

other houses. We were looking for a house, and looked at 
all the houses vacant, and they looked very nice, all the six 
houses looked so nice.

Q. Where was your deal for the house consummated, in 
whose office?

A. You mean completed?
Q. Yes.
A. It was consummated in the office of Mr. Jacobs. He 

is the lawyer for the HOLC, Mr. Harvey Jacobs.
Q. Was there anything said regarding the Negro question 

at that time?
A. We asked him again, and he said there was a covenant 

on it, and they searched the deed and we did not have.
Q. By the way, what is your color ?
A. Strictly white.
Q. What is the color of your husband?
A. White.
Mr. Gilligan: That is all.

Cross-examination 
By Mr. Houston:

Q. You did not make any inquiry about the title to the 
other houses.

A. No sir; Mr. Nice told me they were covenanted, that 
there was a covenant on the six houses, and they told us 
the apartment across the street was all white. You could 
see that.

Q. You found out later there was not this same covenant 
on the Fleet house?

A. Yes sir, later.
Q. And you were one of the persons who joined with Mrs. 

Gorowitz in the case against the Fleets which was lost?
A. That is right.
Q. And which has not been appealed?



41

A. That is right.
Q. If you had found out the Fleet house had no covenant 

on it, would you have bought?
A. I certainly would not have.
Q. So, it is the presence of the Fleets in the neighbor­

hood, and the fact their house has no covenant on it that 
caused the trouble?

A. That is the truth.
Q. And, in your opinion, how many Negroes would it take 

to change the neighborhood; would one moving in change it ?
A. I f one moved in, there will be two, and then three and 

then four.
Q. My question is, if one moved in, would that change the 

neighborhood?
A. It starts the ball rolling.
Q. You know there is no legal way to get the Fleets out?
A. I don’t know much about the law, but they said we 

could appeal the case.
Q. Assuming they are going to be there every day and 

are not going to move, you are still going to stay in the 
neighborhood with the Fleets ?

A. I don’t think so.
Q. As a matter of fact, you have no objection to colored 

families?
A. I do right now.
Q. Did you ever have a conversation with a Negro man 

when you discussed the proposal of selling colored?
A. One evening a friend of Mr. Huntley, Mr. Langford,* 

came and talked to me. He did not say out right, but I had 
an idea,—he gave me a price for the house, and I had an 
idea he wanted to strengthen the case by the making of a 
promise of my selling, but I did not give the price. The 
whole white neighborhood was in the case, and I was not 
going to sell my house.

Q. He offered you what?
A. He offered me $10,000.
* Correct spelling Lankford.



42

Q. How much did that represent as an increase over the 
price you paid?

A. $2,000.
Q. Now, didn’t you tell him you wanted an extra $1,000 

and would not take his price ?
A. No sir, I did not tell him that. I told him he very well 

knew we had this case coming up, and I said we would not 
hurt the others down there. So, if the worst comes to the 
worst we will sell.

Q. So, if the Fleets stay on there, you plan to get out?
A. I don’t think the Fleets will stay there. They are too 

noisy,—I can’t say the word.
Q. The point is, if they do stay there, you will get out?
A. They are not going to stay.
Q. Why do you know that ?
A. Because the neighbors will not put up with it. They 

are too loud and noisy, even if they were white people.
Q. The point I am getting at—
The Court (interposing): Isn’t that getting pretty far 

afield.
Mr. Houston: I do not think my question is far afield. 

My question of the witness was, is she going to stay in the 
neighborhood or get out. I think that goes to the merits of 
the case.

The Court: I will exclude the question.
Mr. Houston: All right, your Honor. Under our rules, 

we do not need to take an exception.
By Mr. Houston:

Q. Regarding the Huntleys, Mrs. Bogikes, you have no 
complaint against the Huntleys?

A. No, Mr. Huntley is very nice. He always says, “ Good 
morning. ’ ’

Q. And Mrs. Huntley?
A. I don’t know her.
Q. You do not know anything out of the way about her?
A. No, they are very quiet people.
Q. Not to go over it in detail, but you have heard the



43

testimony of Mr. Gorowitz about the neighborhood. That 
is substantially correct, about the rooming bouses and the 
apartment?

A. Yes sir.
Q. How many neighbors do you visit in the block?
Mr. Gilligan: I object to that kind of a question.
The Court: I will exclude it.
Mr. Houston: All right, your Honor. I shall not press it.

By Mr. Houston:
Q. Now, you spoke about the fact the property looked so 

nice when you came in the block to look at the property with 
the idea of buying. You saw the Huntley house at that 
time ?

A. Yes sir.
Q. And the property the Huntleys now occupy looks just 

as nice as it did at that time?
A. Yes, sir.
Q. In other words, they have kept that property up in 

good shape ?
A. Very nicely.
Q. So, with the exception of the standpoint of color, there 

is no objection so far as the Huntleys are concerned?
A. Yes; of course, if they stay, there will be others, and 

our property will depreciate. It always does.
Q. How do you know it always does?
A. I know myself. My mother has an apartment on Q 

Street, and the same thing happened there.
Q. Where is that?
A. On Q almost to 18th.
Q. 18th and Q?
A. Yes sir.
Q. You say that happened; do you have any other infor­

mation about it?
A. This is the first house I ever bought. I have no other 

information.
Q. In other words, it is just feeling on your part?
A. Yes, sir.



44

Mr. Houston: That is all.
Mr. Gilligan: That is all.
(Thereupon the witness was excused and retired from the 

witness stand.)
Thereupon:

Patrick D. Holmes
was called as a witness for and on behalf of the plaintiffs, 
and being then and there duly sworn by the Clerk of the 
Court assumed the witness stand and, upon examination, 
testified as follows:

Direct Examination 
By Mr. Gilligan:

Q. Mr. Holmes, you were the actual owner of the house, 
2530 13th Street, Northwest, when it was sold to the 
Hundleys ?

A. My son and myself.
Q. The property was put in your son’s name?
A. Yes sir.
Q. You are here under subpoena?
A. Yes sir.
Q. And not a very willing witness?
A. I am willing enough. I got a summons, and I have got 

to come here. I take that back. I told you I would come 
without a summons.

Q. Then you are a willing witness ?
A. Yes, you know that, don’t you; you will acknowledge 

that.
The Court: I do not want counsel to indulge further in 

that inquiry. Proceed with the examination.
The Witness: Mr. Gilligan and I have been friends for 

years, and I told him—
The Court (interposing): We will not go into that.

By Mr. Gilligan:
A. Did you have any discussion with Mrs. Gorewitz before 

you sold to the Hundleys regarding 2530 13th Street?
A. Nothing definite at all. We talked on a few occasions.
Q. She has made the statement you told her you were



45

fixing it up and were going to live in there as your home?
A. I told her I considered that, yes.
Q. You did fix it up?
A. Yes sir.
Q. Did you have any conversation with Mr. Sparrel Wood, 

president of the Citizens Forum of Columbia Heights?
A. Yes, I did.
Q. Will you tell the discussion you had with him regard­

ing this property?
A. Mr. Wood came to me and told me there was some 

covenant and I told him he was mistaken, there was not 
any covenant on it, and we had some conversation, that 
they would try to sell it or take it over.

Q. Did you give him a certain length of time to try to 
find a white purchaser?

A. Yes sir.
Q. Do you know how long that was?
A. I don’t remember.
Q. Now, getting down to the Huntleys, did you have any 

discussion with the Huntleys regarding the fact there was 
a restrictive covenant with this deed?

A. I did.
Q. Just what did you say?
A. I told him there was a covenant in the deed.
Q. What kind of a covenant?
A. Against colored people; that is in writing in the con­

tract.
Q. Just what is the writing?
A. I don’t remember the exact words.
Q. Is that a copy of the contract? (Handing paper to 

witness.)
A. Yes sir.
Q. Just what is in there regarding the question of a re­

strictive covenant?
A. They would have five days to investigate the covenant 

before they signed, through the title company, and if they 
did not care to carry it through, I would refund their money.



46

Q. Anything else?
A. Yes, if they did carry it through, I was to be relieved 

of any obligation of any kind, or legal action of any kind.
Mr. Gilligan: I would like to offer this in evidence. It is 

a copy of the contract covering this property. I will offer 
this as Plaintiff’s Exhibit 4.

(The said document so offered, was marked Plaintiff’s 
Exhibit No. 4.)

Mr. Gilligan: I would like to read into the record a state­
ment signed by Frederick Pluntley, dated January 17, 1941, 
appearing in the contract of sale for the house, 2530 13th 
Street, Northwest:

“ We hereby release the seller from any and all liability 
that may arise from the use and occupancy of the premises 
because of the covenant recorded against these premises, 
and waive our rights of any refund of the purchase price.”  

By Mr. Gilligan:
Q. Where was that put on?
A. At the title company. But the five day option was put 

on when they put up the deposit. They had five days to do 
the investigating.

Mr. Gilligan: I think that is all.
Cross-examination 

By Mr. Houston:
Q. Why did you change your mind and decide not to use 

2530 as your home?
A. I did not care to live next door to Mrs. Gorowitz.
Q. Not because Negroes wore in the block?
A. No sir.
Q. Now, Mr. Holmes, you are familiar with the property 

that the Huntleys bought?
A. Yes sir.
Q. Have they depreciated or deteriorated the property by 

their occupation?
A. I should say not.
Q. What is your opinion as to their moving in, and what 

they have done so far as it affects the value of the property?



47

The Court: Are you qualifying Mr. Holmes as an expert?
Mr. Houston: I think I will qualify him.
The Court: Let’s qualify him first.

By Mr. Houston:
Q. You are a licensed real estate broker in the District 

of Columbia?
A. Yes sir.
Q. You have been a licensed real estate broker how long?
A. I have been in the real estate business about 30 years.
Q. Have you also in the course of your real estate busi­

ness had occasion to deal in property of the type the Hunt- 
leys have brought and which Mrs. Gorowitz occupied on 
13th Street?

A. Yes sir.
Q. You have made sales and appraisals of property of 

that character?
A. Through that entire neighborhood, yes.
Q. Have your services been used by the Government as 

an appraiser of property in various proceedings?
A. No sir, but I have appeared against the Government 

in cases.
Q. But, you have been used as an expert in investigations 

and litigation ?
A. Yes sir.
Mr. Houston: Do you admit that Mr. Holmes is a qualified 

real estate expert?
Mr. Gilligan: I think Mr. Holmes is a very excellent real 

estate dealer. He has done some things I would not do, but 
he is a very excellent real estate dealer.

Mr. Houston: You agree he is a real estate expert?
Mr. Gilligan: Yes.

By Mr. Houston:
Q. Mr. Holmes, will you give your expert opinion as to 

the effect of the Huntleys taking over the occupation and 
use of the real estate, considering the repairs they have 
made, as to either its depreciation or increase in value ?

A. They have improved the property, at least to the extent



48

of $1,500.00 or $2,000.00. It is improved to that extent. 
I would not have obligated myself to do it for less than that.

Q. In comparison with the other five houses in the same 
row, how would you say the Huntley’s house compares in 
appearance ?

A. I have not inspected the interior of each of those 
houses, but, I would say they have got the best house in 
the row.

Mr. Houston: That is all.
Redirect Examination 

By Mr. Gilligan:
Q. Now, Mr. Holmes, did you decide not to use this prop­

erty as your home when you found out that 2526 13th Street 
was occupied by colored people ?

A. I don’t remember that.
Q. Did you tell that to Mrs. Gorowitz?
A. No sir.
Q. Would you like to buy Mrs. Gorowitz’s home so that 

you might live next door to the Huntleys?
A. I would rather live next door to the Huntleys than 

Mrs. Gorowitz.
Q. That is not my question. I f she paid $13,000.00 for 

her property, and wanted to sell for $10,000.00, would you 
pay that and live next to the Huntleys?

A. No, I would not pay that for it now.
Q. Does the moving in of colored people depreciate the 

value of price in the neighborhood ?
A. That depends on the neighborhood. In that neighbor­

hood the colored people have paid $1,000.00 to $3,000.00 
more.

Q. That is the entire row?
A. Take Monroe Street, the people up there, the colored 

people paid in the whole block more than $1,000.00 more.
Q. Did you sell all the houses up there?
A. No, but I know a good many sales that were made up 

there. I sold two.



49

Q. And you say all the houses are now occupied by col­
ored people?

A. No sir, I did not say that.
Q. There are still many white people there?
A. Not any more between tenth and eleventh, and prac­

tically in the nine hundred block.
Q. As a matter of fact you would not want to live in the 

Huntley house because 2526 was occupied by the Fleets?
A. I tell you again I would rather live next door to the 

Huntleys than Mrs. Gorowitz.
Q. That is not the question. I am asking you, you would 

not have lived at 2530 because 2526 was occupied by the 
Fleets?

A. That wouldn’t have stopped me.
Q. The fact that was occupied by colored people, that 

would not have stopped you?
A. The fact that there are one or two colored families in 

the block would not stop me at all.
Q. You just move into a property and sell it?
A. No. I am getting ready to move now.
Q. You have just moved in?
A. No.
Q. You lived on Franklin Street, and you are moving 

from there?
A. No, I am living at 1016 Douglas.
Q. You have moved a great many times?
A. Nine times in the last ten years.
Q. Have you always moved into neighborhoods where 

colored people were living?
A. I moved in on Twelfth Street where colored people 

are living.
Q. Were they living there then?
A. Yes, sir.
Q. How long did you stay there ?
A. About two years.
Q. You move into a house and fix it up and then resell it? 
A. Exactly.



50

Q. As a real estate man you move in to get a purchaser?
A. Exactly.
Q. You don’t move in because colored people are living 

in the neighborhood?
A. No sir.
Q. Simply for the purpose of buying and selling?
A. Yes sir.
Mr. Gilligan: That is all.

Recross-examination 

By Mr. Houston:
Q. And you do not move out because colored people are 

living there?
A. No, I do not.
Q. Mrs. Gorowitz has testified that in 1927 she bought 

her property for $13,500.00. Assuming there were no Ne­
groes in the block at all, would her property be worth 
$13,500.00 today?

A. No sir, it would not be worth much more than $6,500.00.
Q. As a matter of fact generally in 1927 there was an 

era of great inflation in real estate values?
A. Yes sir.
Q. So, in your opinion as a real estate operator, if Mrs. 

Gorowitz wanted to sell, and was not able to get $13,500.00, 
it would not he because Negroes were in the block, and that 
they have depreciated the value of the property?

A. No sir.
Q. Mr. Holmes, in your opinion, or I should say in your 

experience as a real estate man, you have had occasion to 
become acquainted with the area from Clifton Street up to 
Park Road?

A. I have.
Q. Has there been a very rapid change in that neighbor­

hood in the last ten years so far as Negro occupation?
A. Negroes occupy the area practically all the way to 

Park Road and Monroe Street.
Q. Has that change occured in the last fifteen yeas?



51

A. It lias.
Mr. Houston: That is all:

Redirect Examination 
By Mr. Gilligan:

Q. You made a very definite statement that the whole 
neighborhood, with the exception of Clifton and Euclid 
Streets is occupied by colored. That goes up to where ?

A. Up to Park Road and Monroe except Clifton and 
Euclid.

Q. You mean 13th Street is colored?
A. That is part of it on the east side, not all of it, no.
Q. Let’s see how much you know. Take the block from 

Euclid to Fairmont, how many are there in there?
A. I don’t know.
Q. And Fairmont to Girard?
A. That is 2700 or 2800.
Q. 2700?
A. I don’t know. On the other side, the 3000 block, that 

is where I am.
Q. We are not up there. I will put it this way, all the 

cross streets except Clifton and Euclid?
A. They are not colored on the west side, no.
Q. The west side where ?
A. But on the east side.
Q. Where?
A. In the 3000 block. They are all colored in the 2800 

block.
Q. That is a pretty big block?
A. Yes sir.
Q. How many houses in that block?
A. I should have said the 2800 block has two.
Q. How many houses in the block where you say there 

are two?
A. I would say thirty. Clifton Street is all white and 

Euclid from 11th.
Q. Take Clifton Street from 11th?



52

A. That is white.
Q. To where?
A. 15th Street practically, 14th and over to 15th is all 

white, and I think there are two families on Girard. Most 
all of them are white.

Q. From Euclid Street all the way over?
A. That is white.
Q. So, as far as 13th Street and Clifton to the corner 

of this block from Clifton Street on up to about the 3000 
block ?

A. I think 13th Street is practically all white except two 
in the 2800 block. I think the rest are white.

Q. That is very much better. I thought you said they 
were practically all colored.

A. I was referring to the cross streets.
Q. Clifton Street is white ?
A. Yes sir.
Q. And Euclid Street all the way to 15th from 11th?
A. Yes, from 15th.
Q. And Fairmont is colored from 11th to 13th Street? 
A. I don’t know about Fairmont exactly.
Q. Then take all the way up Girard and Columbia Road? 
A. From 11th to 13th, yes.
Q. But not on the west side of 13th?
A. No sir.

By the Court:
Q. How about Clifton and 13th?
A. That is white.
Q. The Clifton Terrace is there?
A. Yes sir.
Q. That is white ?
A. That is white.
Q. And the High View Apartments are there ?
A. Yes sir, that is white.
Q. And the Castle Manor Apartments?
A. That is white.



53

Q. How many suites are there in the Castle Manor Apart­
ments ?

A. I don’t know. It is a four or five story building.
Q. How about Clifton Terrace Apartments?
A. I just don’t recall.
Q. It is a large building?
A. Yes sir.
The Court: That is all.
Mr. Gilligan: That is all.

Recross-examination 
By Mr. Houston:

Q. I will ask you further, in your opinion the fact of the 
Hundleys’ remaining in the block depreciates the value of 
the property in that block?

A. I don’t think so.
Q. And the second question is, when you testified that all 

these people are white, you mean that as far as color is 
concerned that the people you know living in these apart­
ment houses, the Castle Manor or the High View, that so 
far as appearances, there is no obvious appearance of them 
being colored or Negroes?

A. No sir.
Mr. Houston: That is all.
(Thereupon the witness was excused and retired from the 

witness stand.)
Thereupon

Sparrel A. Wood
was called as a witness for and on behalf of the plaintiffs, 

g then and there duly sworn by the Clerk of the 
Court assumed the witness stand and, upon examination, 
testified as follows:

Direct Examination 
By Mr. Gilligan:

Q. Mr. Wood, what is your position in connection with 
the Citizens Forum of Columbia Heights?



54

A. I am President.
A. What area does that forum serve?
A. It serves 13th Street between Lamont and Columbia 

Road.
Q. Are you familiar with the situation in the 2500 block 

on 13th Street with i-egard to colored people?
A. Very well.
Q. Will you tell his Honor just what passed between you 

and Mr. Holmes in connection with the 2500 block on 13th 
Street?

A. I got in touch with Mr. P. D. Holmes on the 10th day 
of January this year. I am wondering, Mr. Gilligan, if I 
may state to the court why I thought it was necessary at 
that time.

Q. You make your statement to the court.
A. Knowing, as I did as Chairman of the Property Pro­

tection Committee that 2530 was not under the certain agree­
ment signed in 1928, and that 2526 at that time was occu­
pied by colored persons, which house was under the agree­
ment, the agreement being that no signer should sell or 
rent to colored, and those who did sign the convenant at 
that time would be released from their obligations, I thought 
at once of 2530 which was not under the citizens agreement, 
and that could be sold to colored and that of itself would 
break the covenant on 2526. I knew also at that time the 
citizens were cooperating with me to try to get house No. 
2526 back into white possession. I was informed by the 
owners of property in the 2500 block on 13th street—

Mr. Houston: I object to what the owners of the property 
informed him.

Mr. Gilligan: This is just preliminary.
Mr. Houston: Well, let it go in.
The Witness: Being informed by the owners of the prop­

erty in the 2500 block that Mr. P. D. Holmes was showing 
the property No. 2530, to colored persons, I immediately 
got in touch with Mr. Holmes by phone on January 10, 
1941, telling him I understood he had bought the property,



55

and was showing it at that time to colored people, offering 
it for sale or rental, or both. Mr. Holmes said he had 
bought the property and was showing it to colored people. 
I told Mr. Holmes that at that time plans were being made 
in order to get 2526 back into white possession, and told 
him how important 2530 would be for the citizens agree­
ment, and for that property not to fall into the hands of 
colored persons. He said, “ Mr. Wood, how long do you 
think it would take the citizens on the block to get 2526 back 
into the hands of white persons? I said that would be 
merely an opinion, but we did want time. He said, ‘ ‘ I will 
give you sixty days,”  and I thanked him. I immediately 
went back, and I had been called in on a number of occa­
sions in these block meetings at Mrs. Gorowitz’s home. I 
immediately went back and informed the owners of the 
property on that block that Mr. Holmes had told me he 
would give me sixty days for the proper arrangements to 
be made, and 2526 to go back to white ownership.

That would bring it to March 10. On Monday, January 
21, I was informed that colored persons by the name of 
Mr. and Mrs. Huntley had moved into the property, 2530. 
I immediately got in touch with Mr. Holmes over the ’phone, 
and told him what I had heard, that colored people had 
moved into the property, and I presumed had bought the 
property, and called his attention to the promise to give 
me or the committee on the block 60 days in which to devise 
plans to get this property back in to the hands of white 
owners. He remembered the promise, but, he said, “ Mr. 
Wood, I will be frank with you, I bought the property orig­
inally for the use of my own family, but when I heard the 
house 2526 was occupied by colored people, I felt that would 
not be a desirable home for my family, and I could not carry 
out my promise, so I have sold it to colored people.

Before this time I had advised the people on the block, 
as the head of the Citizens Forum and head of the Property 
Protection Committee, that I believed the best plan would 
be to appoint a committee to see Mr. and Mrs. Huntley, who



56

were tlie purchasers from Mr. Holmes of this property, 
and see if arrangements could be made by which they would 
be willing to dispose of that property to white purchasers. 
Plans were being made to that effect when I thought it would 
be a good plan for me to go to see Mr. Holmes at his office 
on Franklin Street, Northeast. I did that, and I took with 
me Mr. C. H. Russell, who has known Mr. Holmes for a 
number of years. Mr. Russell and I went to see Mr. Holmes 
at his office between January 22nd and January 29th. I do 
not know what day of the week that was, but it was between 
those dates. We wanted to know from him,—I was the 
spokesman for Mr. Russell was not vitally interested in that 
property,—I wanted to know if there was an arrangement 
or any plan by which he could use the good offices of his 
real estate firms to make arrangement with Mr. and Mrs. 
Hundley by which the property at 2530 could be passed hack 
into the hands of white people, and so save the citizens 
covenant.

Mr. Holmes told me he would do what he could do. But, 
in the course of that conversation he said, “ Mr. Wood, I 
do not believe very much in this covenant,”  and he said, 
“ Do you know there is a covenant on 2530, that is, a deed 
covenant on 2530, and if you want to know about it, I will 
give it to you,—I will give you the case number at the Dis­
trict Title Company.”  That being news to me, I thanked 
him and took the case number.

I went back home and then went to the District Title 
Company and called for this case number, and I was showed 
what is called a deed covenant on the property, as I remem­
ber, not to sell, rent or otherwise allow to be occupied by 
colored persons or people of the colored race under a fine 
or penalty of $2,000, as I recall it. Having been informed 
this was on the deed on this property, I as the head of the 
Citizens Forum, called another meeting to be held on the 
29th of January, 1941 at the home of Mrs. Gorowitz. I 
went to that meeting and as head of our property protective 
committee, I  opened the meeting and informed the owners



57

of property who were there, that I had learned two or three 
days before that, that there was a deed covenant on the 
property 2530, and advised them at that time that I thought 
it would be the best thing for them to employ a lawyer and 
bring suit before the Court on the deed covenant on Prop­
erty 2530. They said they thought I was right, and I men­
tioned Mr. Gilligan. I said I thought he would be the proper 
one to bring that suit.

Mr. Gilligan: You need not mention me.
The Witness: Mr. Gilli gan was employed, and they pro­

ceeded on this claim. That is all I know about the case and 
the covenant.

By Mr. Gilligan:
Q. Do you know anything about the effort made in con­

nection with 2526 from the time these people moved in?
A. I think I know a good deal about it.
Q. Will you tell his Honor briefly,— (The reason I ask 

that question, your Honor, is that our good friend said 
there was laches, and Judge Bailey said there was no 
laches.)

The Court: The record speaks for itself, and it will save 
time to refer to the record.

Q. Are you familiar with the question of the occupancy 
of the houses in your territory,—by the way, what does 
that territory cover?

A. The territory of the Citizens Forum?
Q. Yes, the Citizens Forum.
A. South to Clifton Street, and 14th Street; down as far 

as Belmont, over to 16th Street, to Shepherd, and then to 
Georgia Avenue, and down Georgia Avenue to Euclid, and 
then to Clifton Street.

Q. So, it includes all of this territory on 13th Street?
A. Yes sir.
Q. Will you tell his Honor about the occupancy from 

Florida Avenue north?
A. Beginning with Florida Avenue, there is no residen­

tial property. Beginning on Belmont there is quite a large



58

apartment house occupied by white persons, and when you 
get further on, there is Clifton Street, and you have on 
the eastern end a very large apartment house, known as 
Clifton Terrace.

Q. How is that occupied?
A. Occupied by white persons.
Q. Tell his Honor about the Central High School.
A. That is south of Clifton Street, between 11th and 

13th. It is one of the white high schools of Washington, 
and has about 3,000 students.

Q. All right.
A. What was your question.
Q. Begin on 11th Street.
A. Between Clifton Street and Euclid there are two 

colored persons, namely, 2526 and 2530 on 13th Street, 
and all the rest, including the large apartment houses are 
occupied by white people.

Q. How large are those apartment houses?
A. There are two large apartment houses, one known as 

the High Viewq next to Clifton Street, a five story high 
building, and it is quite a large apartment building. I would 
not say how many persons occupy it. Then, next to that 
is the Castle Manor, the same size and occupied by white 
people.

Q. Now, go on north on 13th Street.
A. There is a smaller apartment in that same block known 

as 2535,—I do not believe it has any name, occupied by 
white people. Probably there are 200 or 300 people in that 
building. All the other buildings on the east side to Euclid 
are white.

Q. Now, between there and Fairmont?
By the Court (interposing):

Q. You said I understood you all the other buildings from 
2535 were occupied by white people ?

A. Yes sir ; 2535 is this apartment house occupied by white 
persons.

Q. How about 2529 ?



59

A. That is occupied by white persons.
Q. And 2543?
A. Occupied by white people.
Q. How about this large frame rooming house at 2523?
A. I can tell you something that happened there recently.
Q. It is occupied by white people ?
A. It is occupied now by white persons, yes sir.
Q. Now, from Euclid to Fairmont on 13th Street?
A. It is solidly white.
Q. Prom Fairmont to Gerard?
A. Solid white.
Q. Gerard to Lamont?
A. On the east side of the street, all colored, except two 

families there.
Q. How about the west side?
A. On the west side there are some colored in the 2800 

block on 13th Street.
Q. What is the number of the block?
A. I do not know the number of the block, but it is be­

tween Gerard and Harvard Streets. The block between 
Harvard and Columbia is the block in which I live. It is 
all right except one family at the south east corner of 13th 
Street and Columbia Road. That is colored. That block 
has a covenant agreement. There is no provision by which 
if a non signer sells to colored it releases the signers of the 
obligation. Everybody except one citizen signed that cove­
nant back in 1928, I believe. So, one family lives there. 
Then the block known as the Irving block is mostly all col­
ored. There are four white families living on the west side.

Q. Take the side streets from 11th and as far as you want 
to go; take Clifton Street?

A. That is solidly white.
Q. How far?
A. All the way to 14th.
Q. How about Euclid Street between 13tli and as far 

as it goes to 16th?
A. That is solidly white.



60

Q. There is a large apartment house on Clifton and Euclid 
that you testified about?

A. Yes, a good sized apartment between 13th and 14th. 
By the Court:

Q. The students of the Central High School, do they come 
from that immediate neighborhood, or from all over the 
city?

Mr. Gilligan: I think Mr. Houston and I can both answer 
that. We were both on the School Board, and they come in 
a large part from that community.

Mr. Houston: It is also true that in the last five years 
there has been discussion about turning the Central High 
School over to colored. Central High students come from 
that area, but they come from a wide area. South of Central 
High, all the people are colored, and that was one of the 
reasons for the discussion as to turning it over for colored 
students.

The Court: You mean the next block over?
Mr. Houston: Yes sir. I f  your Honor knows the com­

munity, 13th at Florida Avenue starts up the hill, and they 
are all negroes on the east of Central High. There is the 
Garfield Hospital on the east side of 11th, and they are all 
Negroes in there.

The Court: I would like to suggest to counsel that you 
submit for the consideration of the Court a stipulation and 
map taking in this whole area. It will be very helpful. 
Mark out on the map what is white and what is colored.

Mr. Gilligan: That is all.

Cross-examination 

By Mr. Houston:
Q. How long have you been in Washington?
A. I have been here since 1919.
Q. You came here from where?
A. I moved from Alexandria here.
Q. Just in order to identify yourself, where were you 

born?



61

A. I was born in Floyd County, Virginia.
Q. You have lived in this area of Columbia Heights how 

long?
A. I have lived at 2913 13th Street since 1924.
Q. Since you came to live in that area, you know that 

there is a large area now occupied by Negroes that was all 
occupied by white at the time you came there, and there 
has been a great change in the character of the residents?

A. There has been a great change on the side streets east 
of 13th Street, and if you will allow me I will give the reason 
for it.

The Court: You may give the reason.
The Witness: For the reason that there were no restric­

tive covenants. For instance, in this Columbia Heights area 
where we are, we have succeeded, in the section where we 
are. We did not start work there until 1930. Before that 
time colored persons had begun to come in on the east side 
of 13th Street on those side streets with the exception of 
Clifton and Euclid, but when it came to Fairmont, Gerard, 
Harvard and Irving and Kenyon, they had gotten in, and 
we could not get the covenant.

Q. How many Negroes does it take to spoil a neighbor­
hood so far as the whites are concerned?

A. I have an opinion if the Court wants me to give it.
Q. I think it is material.
The Court: I do not think so.
Mr. Houston: Your Honor allows me an exception on 

that?
The Court: Yes.

By Mr. Houston:
Q. You have not moved out of your own block due to the 

presence of a Negro family in the block?
A. Certainly not.
Q. Now, coming down to 2526, you were instrumental 

in getting the case brought against the Fleets and the 
Hundleys ?

A. Just purely my advice. Not being a property owner



62

on the block I had nothing to do with it except in an ad­
visory capacity, and I was merely called in in such capacity.

Q. And when you told them about the covenant on 2530, 
nobody knew about that?

A. I did not know there was a deed covenant until Mr. 
Holmes told me in January. He did not think much of it.

Q. So, nobody else knew about the deed covenant until 
you told them about it at Mrs. Gorewitz’s house?

A. No sir.
Q. Mrs. Gorewitz never told you about that deed covenant 

on 2530?
A. No, she did not tell about the deed covenant, but the 

restrictive covenant.
Q. Mrs. Gorewitz told you she moved in there in 1924, and 

that restrictive covenant was not on there then, but it was 
put there later?

A. I do not know when she moved in.
Q. That is a matter of record. Now, as to the Fleet prop­

erty, 2526, there is no way, so far as your study of the case, 
and your consultations with Mr. Gilligan, to get the Fleets 
out by legal means now ?

A. There is not any way to get them out by legal means ? 
That would he merely an opinion. I would not know.

The Court: That is not material.
Mr. Gilligan: I would not mind him answering.

By Mr. Houston:
Q. Now, let me get down to the meat of the thing, and 

that is this: Assuming the Fleets are in the neighborhood, 
and cannot be removed, is there any further action the Citi­
zens Association is going to take,— suppose they will not 
sell?

A. Mr, Houston, I want you to understand that the Citi­
zens Association has not brought action in this case. The 
Citizens on the block are bringing that suit. It is not the 
Citizens Association. As head of their committee, I have 
advised them to do so, but I am not a plaintiff in this case.



63

Q. I understand, but you did go around and raised a lot 
of money.

The Court: We are wasting a lot of time.
Mr. Houston: At the same time I want to develop this 

question about the occupancy of 2526. I think that is quite 
material.

The Court: Well, the Fleets are in.
The Witness: Would your Honor like to know my first 

connection with the 2526 case ?
The Court: No.
Mr. Houston: It stops there, and I leave it there. The 

Fleets are in and not out.
By Mr. Houston:

Q. There are some Negroes on the side streets west of 
13th Street?

A. On Gerard Street there are.
Q. And also on Harvard?
A. No, absolutely not.
Q. That is so far as you know?
A. No, they have been in my office, and they are 100 per 

cent signers.
Mr. Houston: That is all.
(Thereupon the witness was excused and retired from 

the witness stand.)
Mr. Gilligan: Your Honor, is it the understanding there 

is no laches as to 2530?
The Court: The record speaks for itself.
Mr. Gilligan: The plaintiff rests.
Mr. Houston: I will call Mr. Ring.
Thereupon

James Ring

was called as a witness for and on behalf of the defendants, 
and being then and there duly sworn by the Clerk of the 
Court, assumed the witness stand, and, upon examination 
testified as follows:



64

Direct examination 
By Mr. Houston:

Q. Mr. Ring, you are Administrative Officer with the Alley 
Dwelling Authority?

A. Yes sir.
Q. You are here under subpoena?
A. Yes sir.
Q. Will you give the Court a picture of the rate of growth 

in the population in the District of Columbia so far as races 
are concerned, and will you state to the Court the situation 
so far as housing in the District is concerned?

A. (Exhibiting chart.) That is rather a large order. So 
far as the growth of the population by races is concerned, 
I would imagine the Bureau of the Census would have more 
accurate information on that.

Q. What is your study in the Alley Dwelling Authority, 
so far as it applies to housing?

A. So far as housing is concerned, the Alley Dwelling 
Authority has determined, on the basis of facts that there 
has been a shortage of housing for families of low income 
for a very long period in Washington. There was a brief 
period before the World War, hut, for a long time there has 
been a severe housing shortage.

Q. May I ask, does that apply to both whites and Negroes 
equally, or is it greater so far as Negroes are concerned?

A. It applies to whites and to colored equally, that is, as 
to families of low income. Of course, it is a matter of 
common knowledge that there is a larger number of families 
of low income in the Negro race in the District of Columbia.

Mr. Crooks: I am afraid we will have to object to this 
line of questioning. So far we have refrained from object­
ing, thinking something would be developed, but I do not 
see any connection between low cost dwellings and the 
property on 13th Street of the value of between $10,000 and 
$20,000.

The Court: Counsel will have an opportunity to connect 
it up.



65

Mr. Houston: I want to prove by several witnesses, start­
ing with Mr. Ring of the Alley Dwelling Authority the 
situation as to housing shortage for any income group, and 
I want to prove, second, I want to prove that there prac­
tically has been no expansion in the Negro residential areas 
in proportion to the amount of growth. I want to prove 
that the Alley Dwelling Authority did not provide any 
increased facilities, but simply a program of construction. 
Not only that, but I want to prove by reason of the fact 
the Government building program has taken away large 
areas of property heretofore occupied by Negroes, that it 
has forced Negroes to go to other areas. I will show also 
the change in the operation of the economic laws of the 
city, and that due to the growth of the population, that 
the Negro population is coming right straight up 13th Street, 
covenant or no covenant.

The Court: The Court will take judicial notice of the 
facts as to the change in the housing problems in Washing­
ton, and that applies to both whites and Negroes.

Mr. Houston: Will your Honor also take judicial knowl­
edge of the fact that certain areas were covenanted in the 
northwest—

Mr. Crooks: I do not believe the Court can take judicial 
knowledge of the fact certain areas have covenants.

The Court: The Court will take judicial knowledge of the 
facts as expressed by the Court, but not as expressed by 
counsel. Now, confine yourself to this particular area.

Mr. Houston: I will, your Honor, but we must also get 
in the proposition about the change in the neighborhood, 
and how it is changing.

The Court: Counsel has agreed to submit the Court a 
map of the general area, and it will show the facts you want 
to prove.

Mr. Houston: It will show the static proof, but will your 
Honor allow me to go further and show the reason for the 
change.

Mr. Crooks: Your Honor, our position is that we are



6 6

seeking to enforce a covenant on this land. We have indi­
cate to the Court that we are willing to submit a map show­
ing the white and Negro situation in the surrounding terri­
tory. WTe feel beyond that, that as to the questions Mr. 
Houston has indicated, that it has no bearing on this case. 
Now, a gentleman from the Alley Dwelling Authority can­
not say whether or not Mrs. Gorewitz or some one else is 
entitled to enforce a covenant as to a house at 2530 13th 
Street. That is our position, and we do not feel that we 
should go into the social aspects of this problem.

Mr. Houston: In submitting our case wre have got to show 
the change and to the extent the change operates directly 
on this property. We will show for instance they could not 
get 100 per cent signers on this 2500 block. I was laying 
my foundation. I am perfectly willing to stop that line of 
examination at this point, but I believe we should show the 
dynamic force that caused the change.

The Court: The Court will confine counsel to the facts 
involved in this particular action.

Mr. Houston: The only thing I can do is to make my 
tender. I should tender here the population figures and 
the census rise in the District of Columbia. I have some 
testimony I am going to offer as to that particular matter. 
I have Dr. Frasier, who has made a study of this area, and 
I take it, your Honor, will take judicial knowledge of any 
Government records. I would like to offer them now at this 
time as Defendants’ exhibit No. 1.

I should like also to call attention to the case of Gorewitz 
vs. Preston as showing the background of this case. Now, 
if your Honor please, this covenant agreement was dated 
in 1910, and Mr. Wood has just indicated something about 
a certain agreement whereby they attempted to bind the 
owners on the square not to sell to Negroes. I wish to read it.

The Court: The Court is interested in the deed with re­
spect to the Fleet property. That property also came down 
from this original development in 1910?

Mr. Houston: That is right.



67

The Court: Tliat was a covenant presumably running with 
the land.

Mr. Houston: No, there was no covenant running with 
the land on that particular property. The stipulation shows 
there were six pieces of property, of which the Fleet prop­
erty was the first one sold. That property has no covenant 
against it.

The Court: But with respect to 2524, 2528, and 2530.
Mr. Houston: There covenants there.
The Court: How about 2514 and 2516 ?
Mr. Houston: No, except they did attempt to put in a 

restrictive agreement, and that restrictive agreement was 
the agreement under which the case was brought against the 
Fleet house, and that was the case that was lost. I take it 
your Honor will let me read the covenant?

The Court: That case is already in evidence.
Mr. Houston: Yes sir. It is stipulated that they were 

not able to get 100 percent of the owners to sign that restric­
tive agreement. So, you have a situation at the present time 
where there are only five houses in the block that have that 
restrictive agreement, and that restrictive agreement is not 
binding, and has no binding force for the reason that it has 
been judicially determined so far as the plaintiffs are con­
cerned that the 1928 agreement is not binding.

The Court: The record is offered in evidence, and the 
Court will read the record.

Mr. Crooks: We object to defendants’ exhibit No. 1.
The Court: The Court will receive it.
Mr. Houston: That is all Mr. Ring.
(Thereupon the witness was excused and retired from the 

witness stand.)
Thereupon

Mary G. Hundley
was called as a witness for and on behalf of the defendants 
and being then and there duly sworn by the Clerk of the 
Court, assumed the witness stand, and, upon examination 
testified as follows:



68

Direct Examination

By Mr. Houston:
Q. State your full name?
A. Mary G. Hundley.
Q. And your address?
A. 2530 Thirteenth Street, Northwest.
Q. What is your occupation?
A. Teacher of French.
Q. Will you please state your education?
A. I was educated in the public schools of Washington, 

and then I went to Radcliff College where I took a Bach­
elor’s degree and I got my Master’s degree at Middleboro.

Q. Your salary in the public school is what?
A. $3200 a year.
Q. Coming down now to the purchase of your home, when 

did you go in?
A. January 18, 1941.
Q. You have lived next door to Mrs. Gorewitz ever since?
A. Yes sir.
Q. You heard Mrs. Gorewitz’s testimony?
A. Yes sir.
Q. You know Mrs. Gorewitz?
A. I have not had a chance to say anything to her. When 

I moved in the house the agent told me she was hostile. I 
was hoping to make friends for I had a number of Jewish 
friends, hut I never had a chance.

Q. Have you knowingly disturbed her?
A. On the contrary I have always retired before mid­

night, and as to telephoning I have been decidedly restricted 
in the use of the phone, for we were annoyed by malicious 
calls from the time we moved in, and I was forced to change 
to an unlisted phone, and therefore I have only had calls 
from business friends.

Q. What improvements have you put in since you bought 
the property?

A. After we moved in we put in a complete modern bath



69

and we put in three French doors, and we have made numer­
ous other improvements.

Q. In the beginning what was it?
A. In the beginning it was about $1500, and since then 

we have put in other improvements, and it is altogether 
$2200 and $2500.

Q. Now, Mrs. Hundley, for the sake of the record, you 
are colored?

A. Yes.
Q. Let me ask you this, has your entire family been 

colored?
A. They have been listed as colored but, some of my fam­

ily could have been listed as white, and could have worked 
to better advantage and have gotten more money.

Q. In your own personal experience, have you been ad­
vised not to say you are colored?

A. Yes sir, in my work at Middleboro, it was necessary 
to use the dormitory, and it was my desire to get proficient 
in French. The officials knew what I was. I never felt it 
was necessary to hide it, and at Radcliff I was advised not 
to mention it so it was not really known among the students.

Q. Are you acquainted with several persons in Washing­
ton who could not be identified as Negroes?

A. Yes sir, we have any number of friends.
The Court: How is that material?
Mr. Houston: Mrs. Hundley admits that she is colored, 

and we can show that as to 2526 a Negro did buy it, and 
was taken for white.

The Court: I do not think that is helpful to the Court 
to pursue that line of questions.

Mr. Houston: Again, your Honor, we will make the tender. 
We can show many cases, and we make the tender now. 
It has been shown that Mrs. Gorewitz was mistaken about 
two of the ladies who stood up, and said that they were 
white, and for that reason I think we should have this in 
the record, and if your Honor wishes to rule it out, of course 
your Honor will allow us an exception.



70

The Court: I will exclude it.
By Mr. Houston:

Q. Mrs. Hundley, I will ask you to look at the pictures 
here that are part of the record, and I will ask you if these 
are pictures of the interior of your home.

A. Yes sir.
Mr. Crooks: We have no objection to this picture.
Q. Now Mrs. Hundley, have you purchased this property 

as a permanent home!
A. Yes sir.
Q. And have you conformed to all the best standards of 

the neighborhood?
A. I believe so. I have lived in similar neighborhoods 

before.
Q. And it is your intention to continue to reside there?
A. Yes sir, I cannot find any other place.

By the Court:
Q. Where did you live before that?
A. I went there from an apartment. When I was speak­

ing of similar neighborhoods, I was thinking of 17th and P. 
I was reared there in my grandmother’s home.

Q. Where was the apartment where you lived?
A. Howard Manor.
Q. Is Howard Manor a colored apartment?
A. Yes sir, and we needed more room. We had two rooms 

a kitchen and bath.
Mr. Houston: That is all.
Mr. Crooks: There will be no questions.
(Thereupon the witness was excused and retired from 

the witness stand.)
Thereupon

Frederick Hundley

was called as a witness for and on behalf of the defendants, 
and being then and there duly sworn by the Clerk of the 
Court, assumed the witness stand and upon examination, 
testified as follows:



71

Direct Examination
By Mr. Houston:

Q. What is your name ?
A. Frederick Hundley.
Q. What is your occupation ?
A. School teacher.
Q. Mr. Hundley, did you and Mrs. Hundley make an effort 

to find another house suitable to your station in life?
Mr. Crooks: We will have to object to that line of ques­

tioning. What they did before is only again pursuing this 
social question.

The Court: I will admit the testimony.
A. We had been looking around for a place, but had not 

succeeded in finding one, that was suitable. We thought 
of Brookland but we did not wish to go out there.

By Mr. Houston:
Q. That is how far away from the Howard Manor where 

you were living?
A. I suppose four or five miles.
Q. And was it closer to Mrs. Hundley’s work?
A. It would be much further.
Mr. Houston: I should like also to make this same tender 

so that the record will shoAv as to Mr. Hundley’s salary.
The Court: I will exclude it.
Mr. Houston: I would like also to ask a question of the 

witness as to his own experience with Negro students who 
have gone through the high school with him in the District, 
as having gone across the line.

The Court: I will exclude that. Will counsel come to the 
bench.

(Thereupon counsel and the Court conferred at the bench 
which the Court directed the reporter not to take down.)

The Court: We will recess now until 1 :30.
(Thereupon at 12:30 o ’clock P. M. a recess was taken in 

the above entitled cause until 1:30 o ’clock P. M.)



72

After Recess
The hearing of the above entitled cause was resumed at 

1 :30 P. M. whereupon the following proceedings were had:
Mr. Houston: There are a couple of tenders I would like 

to make at this time. I want to tender two of the witnesses 
who stood up to be identified, and were identified as white by 
Mrs. Gorewitz.

The Court: Do they live in the block?
Mr. Houston: No. Does your Honor exclude that?
The Court: That is excluded.
Mr. Houston: Second, it is known to the plaintiffs and to 

Mr. Gilligan that there is no covenant in this block on the 
Clifton Street side. Your Honor will remember that Mr. 
Wood testified that the block was covenanted on Euclid and 
Clifton. There was an agreement made on the 10th day 
of September, 1926, and recorded on the 30th day of Sep­
tember covering all property on Euclid on both sides be­
tween 13th and 14th except the premises 1357 Euclid Street 
to run for 21 years from date, and it will expire on the 10th 
day of September, 1947.

Mr. Gilligan: There is a covenant also on Clifton Street 
between 11th and 13th Streets.

Mr. Houston: His Honor mentioned this square, and there 
is no covenant on this square, and I say that with oppor­
tunity of counsel to check it.

The third thing I would like to do is to tender at this time 
the chain of title of Lot 77. The point there is that the 
title comes to the Hundleys from the Home Owners Loan 
Corporation. May I ask that it be turned over to the re­
porter so that it can be spread on the record. Again, I am 
tendering it subject to the right of counsel to inspect it, 
and to make any corrections they may find.

The said chain of title is as follows:
Chain of Title to Lot 77

1. Deed Harry B. Wilson and Harry Wardman, dated 
September 29, 1910, recorded October 4, 1910 (Liber 3364,



73

f. 214) to William A Folger and Rebekali Folger his wife 
(covenant set out in full)
2. Deed William A. Folger and wife dated November 24, 
1924, recorded December 17, 1924 (Liber 5410, f. 198) to 
Nelly M. Purcell. (Subject to covenants of record).
3. Deed in trust Nelly M. Purcell dated Mar. 15, 1934, 
recorded Mar. 15, 1934 (Liber 6783, f. 299) to Charles A. 
Jones and Paul J. Frizzell trustees to secure HOLC $7,- 
383.53.

(No mention of covenants)
4. Trustees deed Charles A. Jones and Paul J. Frizzell 
trustees, dated November 13, 1940, recorded Nov. 19, 1940 
(Liber 7546, f. 571) following auction sale Nov. 12, 1940, 
upon default under deed in trust supra, to Home Owners 
Loan Corporation $6,500.00.

(No recital that deed is subject to covenants of record.)
5. Deed Home Owners Loan Corporation dated Dec. 23, 
1940, recorded Jan 13, 1941 (Liber 7567 f. 333) to Nelson 
D. Holmes.

(No covenant)
6. Deed Nelson D. Holmes dated Jan. 17, 1941, recorded 
Jan. 23, 1941 (Liber 7571 f. 328) to Frederick F. Hundley 
and Mary G. Hundley.

(Subject to covenants of record)
By Mr. Houston:

Q. Mr. Hundley, were you advised anything by Mr. Lang­
ford, acting as your agent and counsel at the time of the 
purchase and sale about the validity of the covenant?

A. No, we were never told of any covenant of 1910.
Q. I am talking about when you signed the agreement 

not to hold Mr. Holmes, if there should be any trouble under 
the covenant; what did Mr. Langford tell you about the cove­
nant in his opinion?

A. He said that the covenant should not have been placed 
on the agreement.

Q. What did he say about it being valid or invalid in his 
opinion.



74

The Court: That is on the theory of representations made 
to the purchaser ?

Mr. Houston: Yes.
The Court: That is admitted.
A. He said it was invalid.

Mr. Houston:
Q. Had any action been taken against the Fleets at the 

time you purchased your property?
A. Not as I know of. In fact, I don’t think there was 

any.
Q. What if any effect did the fact that the Fleets were 

on the premises living in their house have on you in the 
matter of your decision to buy ?

A. Well, it had a great deal. We figured if one colored 
family moved in the block, and remained as long as they 
had without any interruption, we were perfectly safe in 
moving into the property.

Mr. Houston: Take the witness.
Cross-examination 

By Mr. Crooks:
Q. Mr. Hundley, you stated Mr. Lankford discussed this 

matter of the covenant with you before the contract was 
signed, is that correct?

A. Yes sir.
Q. How long before?
A. Not more than a few days, about a week.
Q. Who was instrumental in getting you to be interested 

in this house?
A. Mr. Lankford.
Q. And in connection with the purchase of that property 

he told you that this covenant in his estimation was not 
valid?

A. It would not hold true. He gave us the impression it 
was the 1928 covenant and could not be valid.

Q. The agreement of 1928?
A. We did not have any knowledge of the 1910 covenant 

at all.



75

Q. Did you know, ox* were you told there was any covenant 
on the Fleet home, 2526 ?

A. No sir.
Q. Did Mr. Lankford say anything to you about that?
A. No sir.
Q. Did you say anything about whether the Fleets were 

Negroes living in 2526?
A. Yes sir, we knew that before.
Q. Did you inquire as to whether or not the Fleets were 

the owners of the property?
A. Yes sir, we knew they were.
Q. Who told you?
A. Well, they told us.
Q. When did you move into the property, Mr. Hundley?
A. In January.
Q. About what date, do you recall?
A. On the 17th I guess.
Q. You made certain repairs prior to moving in?
A. No, we did not make any repairs until we moved in. 

The house was in excellent condition, but we made extensive 
repairs after we moved in, and the suit was not brought until 
we had spent an enormous sum to put it in shape.

Q. What do you mean by an enormous sum of money?
A. Around $2300.00.
Q. You estimate that the amount you spent on the prop­

erty up to the time this suit was filed was $2300.00?
A. Between $2300.00 and $2400.00.
Q. Did you have any conversations with Mr. Holmes in 

connection with this property?
A. Sui*e, befoi'e purchasing it.
Q. Did he say anything about the covenant?
A. Yes, he said in the beginning if any ti’ouble came up 

about the covenant, our money would be refunded, that is, 
the initial payment.

Q. And it was on the basis of Mr. Lankford’s judgment 
that you bought the property?



76

A. Yes sir, as an attorney tie took it that way. He is an 
attorney.

Q. And in the real estate business also?
A. Yes sir.

By The Court:
Q. Did you consult him as a real estate man or as an at­

torney?
A. As a real estate man.

By Mr. Crooks:
Q. You and your wife did sign that statement to save Mr. 

Holmes from any damages?
A. Yes sir, but that was placed on afterwards. There are 

two agreements there. He put the second one on when we 
got it from the title company.

Q. This statement up above in type was that on there at 
the time you signed the agreement on January 11 ?

A. As I remember it was not.
Q. That is on the right hand side of the back of plaintiffs ’ 

exhibit 4, being the sales contract?
A. Yes sir.
Q. When was that put on there ?
A. In the title company’s office.
Q. On the same date as the writing on the left hand side ?
A. Yes sir.
Q. And on the left hand side is the date J anuary 17, when 

was that put on there?
A. That was put on there in the house, 2530.
Q. Mr. Hundley, you and your wife, in spite of the fact 

that there might be some question about this covenant and 
its validity, you two proceeded to spend approximately 
$2500.00 in making the repairs on the house, and fixing it 
up the way you wanted it ?

A. Certainly, for we wanted to disprove the fact we 
would let the property run down. We tried in every way to 
make it more attractive and worth living in.

Mr. Crooks: That is all.



77

Redirect Examination 
By Mr. Houston:

Q. Mr. Hundley, did you have any complaint prior to the 
letter you received in March from Mr. Gilligan advising 
you that you had violated what he considered to be the law 
in occupying that property,—had you had any complaint 
or objection from anyone else?

A. No sir.
Q. Had you completed the repairs by that time?
A. I think we were in the middle. We had not completed 

all of them.
Q. As a matter of fact you borrowed $1500.00 from the

F. H. A.?
A. We certainly did.
Mr. Houston: That is all.
(Thereupon the witness was excused and retired from the 

witness stand.)
Mr. Houston: Mr. Gilligan is willing to agree that the 

letter dated March 14,1941, to Frederick Hundley and Mary
G. Hundley was the first notice that came to Mr. Hundley 
raising any objection to the Hundleys owning this property.

I would like to recall Mrs. Bogikes.
Thereupon

Marian 0. Bogikes

having heretofore been first duly sworn by the Clerk of the 
Court, was recalled, and assumed the witness stand, and, 
upon examination testified as follows:

Recross-examination 
By Mr. Houston:

_ Q- You have been sworn, and I just wanted to inquire a 
little more about the purchase of your property, on the 
question of value, Mrs. Bogikes. You were shown the prop­
erty by the Home Owners Loan Corporation and purchased 
the property from them?



78

A. Yes sir.
Q. Will you state what the Home Owners Loan Corpora­

tion was asking for the property?
The Court: You are speaking about 2534?
Mr. Houston: Yes sir.
Q. What was the price they asked?
A. They were asking $9500.00.
Q. They reported to you they had an offer of $10,000.00 

from a Negro, and would not accept it?
A. Yes sir.
Q. You were able to purchase it for what?
A. $8,000.00.
Q. You have been in the Gorewitz house?
A. Yes sir.
Q. And it is identical to yours?
A. Practically.
Q. Which has the larger rooms ?
A. The same amount of rooms. The stairway is identical. 

We have two baths and they have one.
Q. What about the garage in the rear?
A. Ours is only a one car garage. Hers is a two car ga­

rage. It does not set right in the back yard as all the 
other garages set.

Q. Is that garage metal or what.
A. I don’t know.
Q. So, you have the same number of rooms in your house 

and two baths and purchased your house for $8,000.00 ?
A. Yes sir.
Mr. Houston: That is all.

Redirect Examination 
By Mr. Crooks:

Q. Along that line, from whom did you get the title to 
your property?

A. From whom did we get the title?
Q. Yes. Who were your grantors, who did you buy from ? 
A. From the HOLC, and they said they searched the title, 

and we did not have to.



79

Q. Do you know how they got it, was it through a fore­
closure ?

A. \es sir, it was; they foreclosed on the people that 
lived there. They were buying our house and the Hundley 
house and they foreclosed.

Q. The same people owned your house that owned the 
Hundley house?

A. Yes sir, and they foreclosed.
The Court: Was there a restrictive covenant in this?
Mr. Grilligan: Yes sir, the same restrictive covenant.
Mr. Crooks: That is all.
(Thereupon the witness was excused and retired from 

the witness stand.)
Thereupon

Lauren Fleet

was called as a witness for and on behalf of the defendants, 
and being then and there duly sworn by the Clerk of the 
Court, assumed the witness stand and, upon examination, 
testified as follows:

Direct examination 
By Mr. Houston:

Q. Mr. Fleet, you and your mother own the premises at 
2526 Thirteenth Street?

A. Yes sir, we do?
Q. Do you intend to sell?
A. No sir.
Q. Do you intend to continue there?
A. Yes sir, regardless.
Mr. Houston: That is all.

Cross-examination 
By Mr. Crooks:

Q. Regardless of what?
A. Regardless of anything that goes on, we intend to re­

main just the same.
Mr. Crooks: No further questions.



80

(Thereupon the witness was excused and retired from 
the witness stand.)

Thereupon

John A. Lankford

was called as a witness for and on behalf of the defendants, 
and being then and there duly sworn by the Clerk of the 
Court, assumed the witness stand, and, upon examination 
testified as follows :

Direct Examination 

By Mr. Houston :
Q. Mr. Lankford, what is your full name?
A. John A. Lankford.
Q. You live where?
A. 1230 Girard Street, Northwest.
Q. Are you a licensed real estate broker?
A. Yes sir.
Q. And as such, with Mr. Holmes, you sold the property, 

2530 Thirteenth Street to Mr. and Mrs. Hundley?
A. Yes sir.
Q. You received your fee from the seller, is that right?
A. Yes sir.
Q. Mrs. Hundley did not pay you at that time?
A. No sir.
Q. Now, Mr. Lankford, did you go back in the neighbor­

hood to any place and discuss the sale of another house, or 
other houses, in this row of six?

A. Yes sir, I sold several houses in that neighborhood.
Q. No, just these six houses; did you go to Mrs. Gorewitz?
A. No, I went to the second door.
Q. Is that Mrs. Bogikes ’ house ?
A. Yes sir.
Q. Did you talk to the lady who has just gone off of this 

stand?
A. Yes sir.



81

Q. What was the conversation ?
A. I told her I was looking for a house for a party in that 

district, and I offered her $1,000.00 more than she paid for 
her house. She said she did not mind selling to colored 
people, but not for $1,000.00 more. I f I would bring an offer 
of $2,000.00 more she would be willing to sell.

Q. Did you advise the Hundleys that in your opinion the 
covenant was not any good?

A. Yes sir.
Mr. Houston: That is all.

Cross-examination 
By Mr. Crooks:

Q. Were you familiar with the writing on the hack of this 
contract.

A. I would have to see it.
Q. I show you this paper. On the back of it is written a 

statement dated January 17, 1941. Are you familiar with 
that statement?

A. Yes sir.
Q. You saw it written?
A. It was made quite a while after the original contract 

was signed. The sales contract was made quite a few days 
before this.

Q. The sales contract was dated January 11, is that cor­
rect as appears on the front of the contract.

A. Yes sir.
Q. And the other statement is dated January 17 ?
A. January 17, yes sir.
Q. You had a conversation with Mrs. Bogikes, did you 

not?
A. Yes sir.
Q. In regard to the sale of that house?
A. Yes sir.
Q. In that conversation isn’t it a fact that you told her 

that if she would sell her home it would help the Hundleys.
A. No sir, I did not tell her anything like that.



82

Q. Did you make any statement to her regarding the 
Hundley’s property?

A. No, unless I may have told her it was a good piece 
of property. I may have said something along that line.

Q. Which was the good piece of property, the Hundley 
property?

A. The Hundley property and her property also.
Q. Did you tell her the Hundley’s were colored people?
A. No, that did not come up at all.
Q. Do you recall on what date you went to the Bogikes 

home and talked to her?
A. It was probably between the 10th and 15th of August. 

That is the last time. Do you mean the first time?
Q. Yes.
A. Probably it was along the last part of January or 

February along in there.
Q. 1941?
A. Yes sir, 1941.
Q. When you saw these people in August of this year, 

you knew of course, this suit had been filed, did you not?
A. Yes, I think so.
Q. Did you make any statement in regard to the suit.
A. No.
Q. You didn’t say anything to Mrs. Bogikes about the 

suit?
A. I remember I did not say anything about the suit.
Q. Did you know at that time that she was a party plain­

tiff to this action?
A. No.
Mr. Crooks: That is all.
Mr. Houston: That is all.
(Thereupon the witness was excused and retired from 

the witness stand.)
Mr. Houston: I will call Dr. Frasier.
Thereupon



8 3

E. Franklin Frasier

was called as a witness for and on behalf of the defendants, 
and being then and there duly sworn by the Clerk of the 
Court, assumed the witness stand and, upon examination 
testified as follows:

Direct Examination 
By Mr. Houston:

Q. Dr. Frasier, you are head of the Department of Soci­
ology and Director of Social Work at the Howard Uni­
versity?

A. Yes sir.
Q. Will you state to the Court where you received your 

education in your special field?
The Court: May I ask counsel what the witness is going 

to testify to?
Mr. Houston: I expect to use this witness to testify to 

changes in the character of the neighborhoods and particu­
larly this neighborhood, and the study he has made in con­
nection with his work at the Howard University of the city 
of Washington. He is an author of a book, in fact several 
books one of them being “ Negro Youth,”  and I want to 
show the cycle of real estate development, first from a home 
owners neighborhood to a rental neighborhood, and then 
it begins to break, and there is an infiltration of other 
groups, and then the real estate goes back again and goes 
through the same cycle, and we want to show that as far as 
Negroes, that the coming in of Negro home owners stabilizes 
the property, and increases the value of the property instead 
of depreciating it. In connection with the witnesses testi­
mony I intend to introduce a study by the Federal Housing 
Administration pertaining to the growth of residential 
neighborhoods in American cities in 1939, and at pages 121 
and 122 there is a discussion of this very phenomena.

The Court: I will exclude both the testimony of the wit­
ness and the author of the book.



84

Mr. Houston: Then may I make the specific offer. This 
testimony is offered to show that after the neighborhood 
has changed Negroes coming in have not worked the change 
but, the change was consummated before they came in, and 
we want to show the development of this particular neigh­
borhood along the path of Thirteenth Street, which is an 
artery of the city, and we want to show that even though 
the covenant itself might be enforced by the Court, the 
enforcement would be futile. We want also to make offer 
of proof that the very persons who make the covenants are 
the persons who break the covenants. In other words, they 
get caught in an economic snare, and in order to get out, 
with falling values, that is a district going from a home 
owners district down to a tenant district, they break it. 
I want to offer the testimony of this witness, and show that 
the testimony of the witness would be predicated on the 
testimony introduced. Your Honor still adheres to your 
ruling ?

The Court: Yes.
Mr. Houston: That will be all, Dr. Frasier.
(Thereupon the witness was excused and retired from 

the witness stand.)
Mr. Houston: Now I should like to call Dr. Raphael G. 

Urciolo. I want to tender Dr. Urciolo to prove that he was 
a teacher at the Central High School, and it was not true 
that the students were drawn from this particular neigh­
borhood.

The Court: I think counsel has stated that himself. The 
question was asked specifically whether the pupils of the 
Central High School were from all over the city, or from 
this immediate neighborhood. Do I understand that this 
witness is going to testify different?

Mr. Houston: No, he is going to testify that they come 
from the city at large and not from the immediate neigh­
borhood.

Now, I also want to qualify this witness as a real estate 
man experienced in the District of Columbia, and who has



85

intimate knowledge of these covenants to establish the fact 
that these covenants makers are the first ones to break the 
covenant.

The Court: The only question in this case is whether this 
particular covenant was binding. I do not think the witness 
would help.

Mr. Houston: Let me make my tender. I want to show 
after the covenant on S Street, and also on Columbia Road, 
in each instance in spite of the fact that the Court issued 
an injunction, the neighborhood again had a change, and I 
would like to have him testify, or tender his testimony to 
the effect that it has been shown that the covenant has de­
pressed real estate values and the lifting of the covenant 
increased the value and I might refer specifically to Thir­
teenth Street. Is your Honor’s ruling the same?

The Court: I will exclude the tender.
Mr. Houston: I do not think it is necessary to call him, 

but, I want to tender Dr. Emmett J. Scott who was one of 
the defendants in the S Street covenant who would testify 
if permitted that all of the houses in that block are now 
occupied by Negroes, which were subject to the covenant.

The Court: The ruling is the same with respect to this 
tender.

Mr. Gilligan: Shall we proceed now with the argument? 
I would be happy to have it go over until tomorrow morning.

The Court: If both counsel agree for it to go until to­
morrow morning that is satisfactory.

I am anxious to finish this case tomorrow morning.
(Thereupon the instant hearing was concluded.)



86

STATUTES

United States Constitution, Amendment V :

No person sliall be held to answer for a capital, or other­
wise infamous crime, unless on a presentment or indict­
ment of a Grand Jury, except in cases arising in the land 
or naval forces, or in the Militia, when in actual service in 
time of War or public danger; nor shall any person be sub­
ject for the same offense to be twice put in jeopardy of life 
or limb; nor shall be compelled in any Criminal Case to be 
a witness against himself, nor be deprived of life, liberty, 
or property, without due process of law; nor shall private 
property be taken for public use, without just compensation.

United States Constitution, Amendment X III :

Section 1. Neither slavery nor involuntary servitude, 
except as a punishment for crime whereof the party shall 
have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction.

United States Code, title 8, Chapter 3. Civil Rights.

Section 41. Equal rights under the law.

All persons within the jurisdiction of the United States 
shall have the same right in every State and Territory 
to make and enforce contracts, to sue, be parties, give 
evidence, and to the full and equal benefit of all laws 
and proceedings for the security of persons and property 
as is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exactions 
of every kind, and to no other.



87

U. S. CODE, TITLE 12, CHAPTER 12.—HOME OWNERS 
LOAN ACT OF 1933

§ 1461. Short Title
This chapter may be cited as the “Home Owners’ Loan Act 

of 1933.” (June 13,1933, c. 64, § 1, 48 Stat. 128.)
§ 1462. Definitions

As used in this chapter—
(a) The term “Board” means the Federal Home Loan 

Bank Board created under chapter 11 of this title.
(b) The term “ Corporation” means the Home Owners’ 

Loan Corporation created under section 1463 of this chapter.
(c) The term ‘ ‘ home mortgage ’ ’ means a first mortgage on 

real estate in fee simple or on a leasehold (1) under a lease 
for not less than ninety-nine years which is renewable, or 
(2) under a lease having a period of not less than fifty years 
to run from the date the mortgage was executed, upon 
which there is located a dwelling or dwellings for not more 
than four families, which is used in whole or in part by the 
owner as a home or held by him as his homestead, and which 
has a value of not to exceed $20,000; and the term “ first 
mortgage” includes such classes of first liens as are com­
monly given to secure advances on real estate under the laws 
of the State in which the real estate is located, together with 
the credit instruments, if any, secured thereby.

(d) The term “ association” means a Federal Savings and 
Loan Association chartered by the Board as provided in sec­
tion 1464 of this chapter. (June 13, 1933, c. 64, § 2, 48 Stat. 
128; June 27, 1934, c. 847, § 508 (a), 48 Stat. 1264; May 28, 
1935, c. 150, § 10, 49 Stat. 296.)
<§. 1463. Home owners’ loan corporation

(a) Creation; directors. The Board is hereby authorized 
and directed to create a corporation to be known as the 
Home Owners’ Loan Corporation, which shall be an instru­
mentality of the United States, which shall have authority 
to sue and to be sued in any court of competent jurisdiction, 
Federal or State, and which shall be under the direction of



88

the Board and operated by it under such bylaws, rules, and 
regulations as it may prescribe for the accomplishment of 
the purposes and intent of this section. The members of the 
Board shall constitute the Board of Directors of the Corpo­
ration and shall serve as such directors without additional 
compensation.

(b) Capital stock; subscription by United States; alloca­
tion of funds by Reconstruction Finance Corporation. The
Board shall determine the minimum amount of capital stock 
of the Corporation and is authorized to increase such capital 
stock from time to time in such amounts as may be neces­
sary, but not to exceed in the aggregate $200,000,000. Such 
stock shall be subscribed for by the Secretary of the Treas­
ury on behalf of the United States, and payments for such 
subscriptions shall be subject to call in whole or in part by 
the Board and shall be made at such time or times as the 
Secretary of the Treasury deems advisable. The Corpora­
tion shall issue to the Secretary of the Treasury receipts 
for payments by him for or on account of such stock, and 
such receipts shall be evidence of the stock ownership of 
the United States. In order to enable the Secretary of the 
Treasury to make such payments when called, the Recon­
struction Finance Corporation is authorized and directed 
to allocate and make available to the Secretary of the 
Treasury the sum of $200,000,000, or so much thereof as 
may be necessary, and for such purpose the amount of the 
notes, bonds, debentures, or other such obligations which 
the Reconstruction Finance Corporation is authorized and 
empowered under section 609 of Title 15, to have outstand­
ing at any one time, is hereby increased by such amounts as 
may be necessary.

(c) Bond issue by corporation authorized; interest and 
principal guaranteed by United States; exemption from tax­
ation. In order to provide for applications filed before May 
28,1935, for applications filed within thirty days thereafter, 
and for carrying out the other purposes of this section, the 
Corporation is authorized to issue bonds in an aggregate



89

amount not to exceed $4,750,000,000, which may be ex­
changed as hereinafter provided, or which may be sold by 
the Corporation to obtain funds for carrying out the pur­
poses of this section or for the redemption of any of its out­
standing bonds; and the Corporation is further authorized 
to increase its total bond issue for the purpose of retiring its 
outstanding bonds by an amount equal to the amount of 
the bonds to be so retired (except bonds retired from pay­
ments of principal on loans), such retirement to be at ma­
turity or by call or purchase or exchange or any method 
prescribed by the Board with the approval of the Secretary 
of the Treasury: Provided, That no bonds issued under this 
subsection, as amended, shall have a maturity date later 
than 1952. Such bonds shall be in such forms and denomi­
nations, shall mature within such periods of not more than 
eighteen years from the date of their issue, shall bear such 
rates of interest not exceeding 4 per centum per annum, shall 
be subject to such terms and conditions, and shall be issued 
in such manner and sold at such prices, as may be prescribed 
by the Corporation, with the approval of the Secretary of 
the Treasury. Such bonds shall be fully and uncondition­
ally guaranteed both as to interest and principal by the 
United States, and such guaranty shall be expressed on 
the face thereof, and such bonds shall be lawful invest­
ments, and may be accepted as security, for all fiduciary, 
trust, and public funds, the investment or deposit of which 
shall be under the authority or control of the United States 
or any officer or officers thereof. In the event that the Corpo­
ration shall be unable to pay upon demand, when due, the 
principal of, or interest on, such bonds, the Secretary of 
the Treasury shall pay to the holder the amount thereof 
which is hereby authorized to be appropriated out of any 
moneys in the Treasury not otherwise appropriated, and 
thereupon to the extent of the amount so paid the Secretary 
of the Treasury shall succeed to all the rights of the holders 
of such bonds. The Secretary of the Treasury, in his dis­
cretion, is authorized to purchase any bonds of the Corpo­



90

ration issued under this subsection which are guaranteed 
as to interest and principal, and for such purpose the Secre­
tary of the Treasury is authorized to use as a public-debt 
transaction the proceeds from the sale of any securities here­
after issued under sections 752, 753 and 757 of Title 31, and 
the purposes for which securities may be issued under such 
sections are extended to include any purchases of the Cor­
poration’s bonds hereunder. The Secretary of the Treasury 
may, at any time, sell any of the bonds of the Corporation 
acquired by him under this subsection. All redemptions, 
purchases, and sales by the Secretary of the Treasury of the 
bonds of the Corporation shall be treated as public-debt 
transactions of the United States. The bonds issued 
by the Corporation under this subsection shall be exempt, 
both as to principal and interest, from all taxation (except 
surtaxes, estate, inheritance, and gift taxes) now or 
hereafter imposed by the United States or any District, Ter­
ritory, dependency, or possession thereof, or by any State, 
county, municipality, or local taxing authority. The Corpo­
ration, including its franchise, its capital, reserves and sur­
plus, and its loans and income, shall likewise be exempt from 
such taxation; except that any real property of the Corpo­
ration shall be subject to taxation to the same extent, 
according to its value, as other real property is taxed. No 
such bonds shall be issued in excess of the assets of the 
Corporation, including the assets to be obtained from the 
proceeds of such bonds, but a failure to comply with this 
provision shall not invalidate the bonds or the guaranty of 
the same. The Corporation shall have power to purchase in 
the open market at any time and at any price not to exceed 
par any of the bonds issued by it. Any such bonds so pur­
chased may, with the approval of the Secretary of the 
Treasury, be sold or resold at any time and at any price. 
For a period of six months after the date this subsection, 
as amended, takes effect, the Corporation is authorized to 
refund any of its bonds issued prior to such date or any 
bonds issued after such date in compliance with commit-



91

merits of the Corporation outstanding on such date, upon 
application of the holders thereof, by exchanging therefor 
bond of an equal face amount issued by the Corporation 
under this subsection as amended, and bearing interest at 
such rate as may be prescribed by the Corporation with 
the approval of the Secretary of the Treasury; but such rate 
shall not he less than that first fixed after this subsection, 
as amended, takes effect on bonds exchanged by the Cor­
poration for home mortgages. For the purpose of such 
refunding the Corporation is further authorized to increase 
its total bond issue in an amount equal to the amount of the 
bonds so refunded. Nothing in this subsection shall he con­
strued to prevent the Corporation from issuing bonds in 
compliance with commitments of the Corporation on April 
27,1934.

(d) Exchange of bonds for mortgages; amortization of 
mortgages; interest rates. The Corporation is authorized, 
for a period of three years after June 13, 1933, (1) to 
acquire in exchange for bonds issued by it, home mortgages 
and other obligations and liens secured by real estate 
(including the interest of a vendor under a purchase-money 
mortgage or contract) recorded or filed in the proper office 
or executed prior to June 13, 1933, and (2) in connection 
with any such exchange, to make advances in cash to pay 
the taxes and assessments on the real estate, to provide 
for necessary maintenance and make necessary repairs, 
to meet the incidental expenses of the transaction, and 
to pay such amounts, not exceeding $50, to the holder 
of the mortgage, obligation, or lien acquired as may 
be the difference between the face value of the bonds 
exchanged plus accrued interest thereon and the purchase 
price of the mortgage, obligation, or lien. The face value of 
the bonds so exchanged plus accrued interest thereon and 
the cash so advanced shall not exceed in any case $14,000, or 
80 per centum of the value of the real estate as determined 
by an appraisal made by the Corporation, whichever is the 
smaller. In any case in which the amount of the face value



92

of the bonds exchanged plus accrued interest thereon and 
the cash advanced is less than the amount the home owners 
owes with respect to the home mortgage or other obligation 
or lien so acquired by the Corporation, the Corporation shall 
credit the difference between such amounts to the home 
owner and shall reduce the amount owed by the home owner 
to the Corporation to that extent. Each home mortgage or 
other obligation or lien so acquired shall be carried as a 
first lien or refinanced as a home mortgage by the Corpora­
tion on the basis of the price paid therefor by the Corpo­
ration, and shall be amortized by means of monthly pay­
ments sufficient to retire the interest and principal within 
a period of not to exceed twenty-five years; but the amorti­
zation payments of any home owner may be made quarterly, 
semiannually, or annually, if in the judgment of the Corpo­
ration the situation of the home owner requires it. Interest 
on the unpaid balance of the obligation of the home owner 
to the Corporation shall be at a rate not exceeding 5 per 
centum per annum. The Corporation may at any time grant 
an extension of time to any home owner for the payment of 
any installment of principal or interest owed by him to the 
Corporation or may at any time during the existence of the 
mortgage grant an extension and revision of its terms to 
provide for the amortization by means of monthly pay­
ment sufficient to retire the interest and principal within a 
period not to exceed twenty-five years from the date of its 
execution if in the judgment of the Corporation the circum­
stances of the home owner and the condition of the security 
justify such extension or revision. As used in this subsec­
tion, the term “ real estate” includes only real estate held in 
fee simple or on a leasehold (1) under a lease for not less 
than ninety-nine years which is renewable, or (2) under 
a lease having a period of not less than fifty years to run 
fx-om the date the mortgage was executed, upon which there 
is located a dwelling for not more than four families used 
by the owner as a home or held by him as a homestead and 
having a value not exceeding $20,000. No discrimination



93

shall be made under this chapter against any home mort­
gage by reason of the fact that the real estate securing such 
mortgage is located in a municipality, county, or taxing 
district which is in default upon any of its obligations.

For the purpose of this chapter, levies of assessments 
upon real property, made by any special district organized 
in any State for public improvements, shall be treated as 
general-tax levies are treated. The Board shall determine 
the reasonableness of the total annual burden of taxes and 
assessments of all kinds upon any property offered as secur­
ity for the payment of a loan made by the Corporation and 
the effect of the total levies upon the loanable value of such 
property, but no deduction shall be made from the loanable 
value of any property for levies not due at the time of 
making such loan in any instance where the total annual 
taxes and assessments borne by the said property for all 
purposes does not exceed a sum which, in the discretion of 
the Board, is a reasonable annual tax burden for such prop­
erty. (As amended Aug. 11,1939, c. 684, 53 Stat. 1403.)

(e) Cash loans on unincumbered property; interest. The 
Corporation is further authorized, for a period of three 
years from June 13, 1933, to make loans in cash subject to 
the same limitations and for the same purposes for which 
cash advances may be made under subsection (d) of this 
section, in cases where the property is not otherwise encum­
bered; but no such loan shall exceed 50 per centum of the 
value of the property securing the same as determined 
upon an appraisal made by the Corporation. Each such loan 
shall be secui*ed by a duly recorded home mortgage, and 
shall bear interest at the same rate and shall be subject to 
the same provisions with respect to amortization and exten­
sions as are applicable in the case of obligations refinanced 
under subsection (d) of this section.

(f) Cash loans on mortgaged property; interest. The Cor­
poration is further authorized, for a period of three years 
from June 13, 1933, in any case in which the holder of a 
home mortgage or other obligation or lien eligible for ex­



94

change under subsection (d) of this section does not accept 
the bonds of the Corporation in exchange as provided in 
such subsection and in which the Corporation finds that the 
home owner cannot obtain a loan from ordinary lending 
agencies, to make cash advances to such home owner in an 
amount not to exceed 40 per centum of the value of the prop­
erty for the purposes specified in such subsection (d). Each 
such loan shall be secured by a duly recorded home mortgage 
and shall bear interest at a rate of interest which shall be 
uniform throughout the United States, but which in no 
event shall exceed a rate of 6 per centum per annum, and 
shall be subject to the same provisions with respect to 
amortization and extensions as are applicable in cases of 
obligations refinanced under subsection (d) of this section.

(g) Loans to redeem foreclosed property. The Corpora­
tion is further authorized to exchange bonds and to advance 
cash to redeem or recover homes lost by the owners by fore­
closure or forced sale by a trustee under a deed of trust 
or under power of attorney, or by voluntary surrender to 
the mortgagee subsequent to January 1, 1930, subject to 
the limitations provided in subsection (d) of this section.

(h) Appraisal rules. The Board shall make rules for the 
appraisal of the property on which loans are made under 
this section so as to accomplish the purposes of this chap­
ter: Provided, That no person shall be allowed to act as 
appraiser if he is in the employ of any company holding a 
loan on the property, or if he is interested in the subject 
matter of the loan.

(i) Payment of loans in bonds of Corporation. Any per­
son indebted to the Corporation may make payment to it in 
part or in full by delivery to it of its bonds which shall be 
accepted for such purpose at face value.

(j) Officers and employees; compensation; free use of 
mails. The Corporation shall have power to select, employ, 
and fix the compensation of such officers, employees, 
attorneys, or agents as shall be necessary for the perform­
ance of its duties under this chapter, without regard to the



95

provisions of other laws applicable to the employment or 
compensation of officers, employees, attorneys, or agents of 
the United States. No such officer, employee, attorney, or 
agent shall be paid compensation at a rate in excess of the 
rate provided by law in the case of the members of the 
Board. The Corporation shall be entitled to the free use of 
the United States mails for its official business in the same 
manner as the executive departments of the Government, 
and shall determine its necessary expenditures under this 
chapter and the manner in which they shall be incurred, 
allowed, and paid, without regard to the provisions of any 
other law governing the expenditure of public funds. The 
Corporation shall pay such proportion of the salary and 
expenses of the members of the Board and of its officers and 
employees as the Board may determine to be equitable, and 
may use the facilities of Federal Home Loan Banks, upon 
making reasonable compensation therefor as determined by 
the Board. No person shall be appointed or retained as an 
officer, employee, agent, or attorney, at a fixed salary, in 
any regional or State office of the Corporation who is an 
officer or director of any firm, corporation, or association 
engaged in lending money on real estate; nor shall any per­
son be appointed or retained as an officer, employee, agent, 
or attorney in any State or district office of the Corporation, 
who has not been a bona fide resident of the State served by 
such office for a period of at least one year immediately 
preceding the date of his appointment.

(k) By-laws, rules and regulations; cancellation of bonds; 
liquidation of Corporation; dividends. The Board is author­
ized to make such bylaws, rules and regulations, not incon­
sistent with the provisions of this section, as may be neces­
sary for the proper conduct of the affairs of the Corpora­
tion. The Corporation is further authorized and directed 
to retire and cancel the bonds and stock of the Corporation 
as rapidly as the resources of the Corporation will permit. 
All payments upon principal of loans made by the Corpora­
tion shall under regulations made by the Corporation be



96

applied to the retirement of the bonds of the Corporation. 
Upon the retirement of such stock, the reasonable value 
thereof as determined by the Board shall be paid into the 
Treasury of the United States and the receipts issued there­
for shall be canceled. The Board shall proceed to liquidate 
the Corporation when its purposes have been accomplished, 
and shall pay any surplus or accumulated funds into the 
Treasury of the United States. The Corporation may declare 
and pay such dividends to the United States as may be 
earned and as in the judgment of the Board it is proper 
for the Corporation to pay.

(l) When mortgagor must be in default. No home mort­
gage or other obligation or lien shall be acquired by the 
Corporation under subsection (d), and no cash advance 
shall he made under subsection (f), unless the applicant 
was in involuntary default on June 13, 1933, with respect 
to the indebtedness on his real estate and is unable to carry 
or refund his present mortgage indebtedness: Provided, 
That the foregoing limitation shall not apply in any case 
in which it is specifically shown to the satisfaction of the 
Corporation that a default after such date was due to 
unemployment or to economic conditions or misfortune 
beyond the control of the applicant.

(m) Advances for rehabilitation, modernization, etc., of 
homes. In all cases where the Corporation is authorized to 
advance cash to provide for necessary maintenance and to 
make necessary repairs it is also authorized to advance 
cash or exchange bonds for the rehabilitation, moderniza­
tion, rebuilding and enlargement of the homes financed; and 
in all cases where the Corporation has acquired a home 
mortgage or other obligation or lien it is authorized to 
advance cash or exchange bonds to provide for the main­
tenance, repair, rehabilitation, modernization, rebuilding, 
and enlargement of the homes financed and to take an addi­
tional lien, mortgage, or conveyance to secure such addi­
tional advance or to take a new home mortgage for the 
whole indebtedness; but the total amount advanced shall



97

in no case exceed the respective amounts or percentages of 
value of the real estate as elsewhere provided in this section. 
Not to exceed $400,000,000 of the proceeds derived from the 
sale of bonds of the Corporation shall be used in making 
cash advances to provide for necessary maintenance and 
necessary repairs and for the rehabilitation, modernization, 
rebuilding and enlargement of real estate securing the home 
mortgages and other obligations and liens acquired by the 
Corporation under this section.

(n) Purchase of obligations of other banks and associa­
tions. The Corporation is authorized to purchase Federal 
Home Loan Bank bonds, debentures, or notes, or consoli­
dated Federal Home Loan Bank bonds or debentures. The 
Corporation is also authoi'ized to purchase full-paid-income 
shares of Federal Savings and Loan Associations after 
the funds made available to the Secretary of the Treasury 
for the purchase of such shares have been exhausted. Such 
purchases of shares shall be on the same terms and condi­
tions as have been heretofore authorized by law for the pur­
chase of such shares by the Secretary of the Treasury: Pro­
vided, That the total amount of such shares in any one 
association held by the Secretary of the Treasury and the 
Corporation shall not exceed the total amount of such shares 
heretofore authorized to be held by the Secretary of the 
Treasury in any one association. The Corporation is also 
authorized to purchase shares in any institution which 
is (1) a member of a Federal Home Loan Bank, or 
(2) whose accounts are insured under sections 1724 to 
1730 of this title, if the institution is eligible for insurance 
under such title; and to make deposits and purchase cer­
tificates of deposit and investment certificates in any such 
institution. Of the total authorized bond issue of the 
Corporation $300,000,000 shall be available for the purposes 
of this subsection, without discrimination in favor of Fed­
erally chartered associations, and bonds of the Corporation 
not exceeding such amount may be sold for the purposes 
of this subsection. (June 13, 1933, c. 64, § 4, 48 Stat. 129;



98

Apr. 27, 1934, c. 168, §§ 1 (a), 2, 3, 4, 13, 48 Stat. 643, 644, 
645, 647; June 27, 1934, c. 847, §§ 506 (a), (b), 508 (b), 48 
Stat. 1263, 1264; May 28, 1935, c. 150, §§ 10-16, 17 (a), 49 
Stat. 296-297.)

§ 1463a. Bonds issued under original provisions; interest 
and principal.

The amendments made by the Act of April 27, 1934, to 
subsection (c) of section 1463 of this title (except with 
respect to refunding) shall not apply to any bonds prior to 
April 27, 1934, issued by the Home Owners Loan Corpora­
tion under such subsection (c) of section 1463, or to any 
bonds thereafter issued in compliance with commitments 
of the Corporation outstanding on April 27, 1934. (Apr. 
27, 1934, c. 168, § 1 (b), 48 Stat. 644.)

ADDENDUM

U. S. Code, title 8, sec. 42. Property rights of citizens.

All citizens of the United States shall have the same right, 
in every State and Territory, as is enjoyed by white citizens 
thereof to inherit, purchase, lease, sell, hold, and convey 
real and personal property.













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