Case Involving Suit for Damages for Violation of Racial Restrictive Covenant on Real Property

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PRESS RELEASE 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND 
107 WEST 43 STREET * NEW YORK 36, N. Y. © JUdson 6-8397 
ARTHUR B. SPINGARN THURGOOD MARSHALL 
President Director and Counsel 

WALTER WHITE ROBERT L. CARTER 
Secretary Assistant Counsel 

ALLAN KNIGHT CHALMERS ARNOLD DE MILLE 
Treosurer Pross Relations 

April 28, 1953 

~ FOR RELEASE: April 28, 1953 

SUBJECT: Case Involving Suit for Damages for Violation of 
Racial Restrictive Covenant on Real Property 

This case up for argument before the United 
States Supreme Court on April 28, 1953 

ISSUR INVOIVED: Whether the equal protection clause of the 

Fourteenth Amendment to the Constitution 

of the United States forbids the bringing 

of an action in a state court to recover damages for an 

alleged breach of a covenant prohibiting the use or 

occupancy of real property by Negroes or members of other 

minority groups, 

THE CASE: The instant case, BARROWS v. JACKSON, is a 

suit brought against Mrs, Leola Jackson, a 

white resident of Los Angeles, California, 

who in 1950 sold her house to a Negro family in violation of 

a racial restrictive covenant which she had signed with other 

property owners not to permit the property to be occupied by 

non-Caucasians, The agreement which Mrs, Jackson signed also 

required her to include this restriction in any deed which she 

gave to her property, 

FACTS OF THE CASEt On October 21, 1944, three home owners in 

Los Angeles, California, Olive and Edgar 

Barrows and M, M. O'Gara, entered into an 

agreement with another home owner, Mrs, Leola Jackgon, 

whepeby the property owners agreed that neither party 

would permit his or her property at any time to "be used 

or occupied by any person or persons not wholly of the 

white or Caucasian race," They also agreed that this 



Legal Defense and Educational Fund—--April 28, 1953 Page 2 

racial restriction would be included in “all papers and 

transfers," 

The agreement further provided that if 

any of the lots should be used or occupied by persons not 

wholly of the white or Caucasian race, the signor of the 

agreement who permitted his or her property to be so oc-~ 

cupied in violation of the agreement, and his or her suc- 

cessors, would immediately become -liable to “the other 

signors and their successors whose lots were not so oc- 

cupied for all damages which they may have suffered by 

reason of the breach." This agreement was recorded on 

the 8th of May, 1945, 

On February 2, 1950, Leola Jackson, in 

violation of the agreement, sold her property to Pearnell 

and Florine Smally, non-Caucasians, and in September, 1950, 

the Smallys began to occupy the property. In 1951, the 

Barrows, Richard Pikaar, a successor in title to a signor, 

and O'Gara filed suit in the Superior Court of Los Angeles 

County to recover $3,000 damages each which they claimed 

they had suffered as a result of the sale of the property 

by Mrs, Jackson to the Smallys,. 

Mrs. Jackson's attaneys argued that the 

United States Supreme Court had held in the 1948 restrictive 

covenant cases that a state court could not issue an injunc- 

tion against the breach of such racial restrictive covenants 

as such action on the part of a state court violated the 

Fourteenth Amendment, Therefore, the Superior Court of 

California could not award damages to the Barrows, Pikaar 

and O'Gara in view of such decision as such an award of 

damages is also prohibited by the Fourteenth Amendment to 

the Federal Constitution, 

On March 26, 1951, Judge Daniel N. Stevens 



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Legal Defense and Educational Fund-~-April 28, 1953 Page 3 

2 qe 

rendered a decision agreeing with Mrs, Jackson's attorneys 

and dismissed the suit. The Barrows, Pikaar and 0'Gara 

then appealed to the District Court of Appeals, Second 

Appellate District of California, 

The three judges sitting in the District 

Court of Appeals, in a lengthy decision by Associate Judge 

Paul Vallee, concurred in by Presiding Judge Clement Shinn 

and Associate Judge Parker Wood, reviewed all of the cases 

decided by the United States Supreme Court, and other courts, 

involving state enforcement of racial restrictive covenants 

and suits for damages for alleged breach of such covenants, 

Theyconcluded that the decisions of the United States 

Supreme Court in 1948 prohibiting the injunction for breach 

of restrictive covenants, precluded the bringing of an 

action for damages for breach of such covenants, 

Following this decision, the Barrows, 

Pikaar and O'Gara appealed to the Supreme Court of the State 

of California which refused to review the case, The decision 

of the District Court of Appeals was therefore affirmed, 

The Barrows, Pikaar and O'Gara then petitioned the United 

States Supreme Court to review their case, and on March 9, 

1953, the highest court agreed to hear it. 

ARGUMENTS: I, Petitioners--They argue that; 

A, They are entitled to recover damages 

from Mrs, Jackson because she violated her agreement by not 

including the racial restrictive agreement in the deed 

which she gave to the Smallys and by permitting the property 

to be occupied by the Smallys, who are"non-Caucasians," 

B, The United States Supreme Court decision 

in Shelley v, Kraemer, and other restrictive covenant cases 



Legal Defense and Educational Fund-~-~April 28, 1953 Page 4 

in 1948, does not prevent them from bringing action for 

damages for breach of racial restrictive covenants, 

C, If the United States Supreme Court 

should. agree with the California courts, they would be 

denied rights secured to them by the Fourteenth Amendment, 

D, The public policy of the State of 

California does not prevent the bringing of an action for 

damages for breach of restrictive covenants, 

II, Respondents--NAACP Legal Defense attorneys for 

Leola Jackson argue that: 

A. The United States Supreme Court 

decisions in 1948 in the restrictive covenant cases, which 

withdrew from the state courts the power to issue an injunc- 

tion against the sale of real property to a Negro in violation 

of restrictive covenants, is the basis for the California 

courts’ ruling that they are without power to order that damages 

be paid to the Barrows, Pikaar and O'Gara by Mrs, Jackson 

for breaching her agreement with them, 

B,. If damages may be recovered for breach 

of racial restrictive covenants, the United States Supreme 

Court's decisions in 1948 will be nullified, Negroes, and 

other minority groups, would be as effectively denied their 

civil right to purchase a home in a more desirable residential 

area as they were before the 1948 decisions, Residential 

racial segregation devices would again receive the sanctions 

of the state courts, 

C. Ina suit for damages, the state court 

is urged to penalize the seller, who sells in violation of 

@ racial restrictive covenant by, in effect, nullifying the 

sale through taking from the proceeds of the sale a portion 

or all of the proceeds to be paid to the suing parties to 



Legal Defense and Educational Fund -- April 28, 1953 Page 5 

the covenant in the form of damages, The seller would, 

therefore, refuse to sell his property to a Negro because 

of the fear of having to pay damages, Thus, the seller 

would be effectively denied the right to dispose of his 

property to whomever he pleases, This would be in violation 

of the due process clause of the Fourteenth Amendment, 

OTHER RESTRICTIVE 
COVENANT CASES: In 1948, the United States Supreme Court 

reviewed four cases, Shelley v. Kraemer, 

Sipes v. McGhee, Hurd v. Hodge and Urciolo v, 

Hodge, involving suits for injunction to enjoin white sellers 

who, in violation of agreements, had sought to sell their 

properties to Negroes, The high court held that neither 

the state courts nor the federal courts could issue an in- 

junction in such cases enjoining the sale to a Negro because 

by so doing the courts would be giving effect to racial 

discrimination in violation of the Constitution, laws and 

public policy of the United States. 

The question whether a party who sold toa 

Negro in violation of the covenant might be sued for damages 

for breach of the covenant was not decided by the high court 

in those cases. Therefore those who sought to maintain the 

vitality of the racial restrictive covenants found it necessary 

to resort to the courts for determination of this question. 

The first such case involving this question 

arose in the State of Missouri in 1949 in Weiss v. Leaon. 

The highest court of that state held that damages, if proved, 

might be recovered, 

The next case arose in 1950 in the District 

of Columbia. In Robert v. Curtis, the United States District 

Court for the District of Columbia held that the United States 



Legal Defense and Educational Fund -- April 28, 1953 Page 6 

Supreme Court's decisions in 1948 were broad enough to 

include suits for damages. Therefore, under those decisions, 

the federal courts could not entertain a suit for damages, 

The next case arose in 1950 in the State of 

Michigan where the Circuit Court for Wayne County, in 

Phillips v. Naff, ruled that in accordance with the United 

States Supreme Court decision, in Shelley v. Kraemer in 1948, 

suits for damages for breach of a reciprocal racial restrictive 

covenant constituted an indirect method of enforcing racial 

restrictive covenants. 

The case which preceded the instant case, 

which was decided in 1951 by the highest court of the State 

of Oklahoma, was Correll v. Harley. In this case the court 

held that damages may be recovered in tort for “willful, 

malicious conspiracy" to injure another's property in 

violation of the agreement, 

There have also been several other cases 

involving suits for injunction which were pending in state 

courts in 1948 at the time that the United States Supreme 

Court rendered its decisions in the four above-mentioned 

cases. Subsequent to 1948, there have also been other state 

court cases involving suit for injunction for breach of 

racial restrictive covenants. In all of these cases, the 

state courts have denied injunctions in accordance with the 

decisions handed down by the United States Supreme Court. 

IMPORTANCE OF THE 
PRESENT DECISION: As indicated above, California, Michigan 

and the District of Columbia have held 

that suits for damages for breach of racial 

restrictive covenants may not be maintained. Missouri and 

Oklahoma have held the contrary. It is therefore important 



Legal Defense and Educational Fund -- April 28, 1953 Page 7 

that the United States Supreme Court resolve this conflict 

by its decision in the present case in order that this 

question may be finally settled. 

If the United States Supreme Court should 

affirm the California courts in this case, it will end all 

racial restrictive covenants. However, should the high 

court follow the holding in the Missouri case, the question 

which then might arise would be: What damages can actually 

be proved as flowing directly and solely from the moving in 

of Negroes? In Buchanan v. Warley, the United States Supreme 

Court said that property values may depreciate by the moving 

in of undesirable white persons and from putting property 

to perfectly lawful uses. 

There is now scientific evidence which proves 

that Negroes do not depreciate property by moving into certain 

residential areas. This evidence has been published in 

articles appearing in 1951 in the Appraisal Journal, a journal 

of real estate appraisers, by Charles Abrams, the noted 

authority on housing, and Dr. Luigi M. Laurenti of the University 

of California. A similar study has been made by Belden Morgan 

and published in The Review of the Society of Residential 

Appraisers for March 1952. 

ATTORNEYS: For Mrs. Leola Jackson--Loren Miller, NAACP 

attorney of Los Angeles, California, who 

successfully agrued Sipes_v. McGhee, one of 

the 1948 restrictive covenant cases before the United States 

Supreme Court, and several other cases arising in the State 

of California. He is assisted by Thurgood Marshall, Director 

and Counsel, N.A.A.C.P. Legal Defense & Educational Fund, of 

New York; Franklin H, Williams, West Coast Regional representa- 

tive. Assisting in preparing the brief were Maurice Walbert, 

James Sims and Harold J. Sinclair of California.