112 Cal.App.2d 534, 18717, Barrows v. Jackson

Docket Nº:18717
Citation:112 Cal.App.2d 534, 247 P.2d 99
Opinion Judge:[12] Vallee
Party Name:Barrows v. Jackson
Attorney:[7] John C. Miles and J. Wallace McKnight for Appellants. [8] John W. Preston as Amicus Curiae on behalf of Appellants. [9] Sims & Wallbert and Loren Miller for Respondent. [10] Rosalind Goodrich Bates, George E. Bodle, James Landye, Basil Feinberg, Saburo Kido, Fred Okrand, Everette Porter, A. L...
Case Date:August 06, 1952
Court:California Court of Appeals

Page 534

112 Cal.App.2d 534

247 P.2d 99

OLIVE B. BARROWS et al., Appellants,

v.

LEOLA JACKSON, Respondent.

Civ. No. 18717.

California Court of Appeal, Second District, Third Division

Aug. 6, 1952

Page 535

[Copyrighted Material Omitted]

Page 536

COUNSEL

John C. Miles and J. Wallace McKnight for Appellants. John W. Preston as Amicus Curiae on behalf of Appellants. Sims &amp Wallbert and Loren Miller for Respondent. Rosalind Goodrich Bates, George E. Bodle, James Landye, Basil Feinberg, Saburo Kido, Fred Okrand, Everette Porter, A. L. Wirin, Abraham Gorenfeld, and David Ziskind as Amici Curiae on behalf of Respondent

OPINION

VALLEE, J.

This appeal presents the question whether the equal protection clause of the Fourteenth Amendment of the Constitution of the United States forbids the maintenance in a state court of an action for damages for the alleged breach of a covenant prohibiting the use or occupancy of real property by non- Caucasians. Defendant's demurrer to the complaint was sustained without leave to amend. Plaintiffs appeal from the judgment which followed.

The facts alleged are these.

On October 21, 1944, three of the plaintiffs, the predecessor of the fourth, and the defendant, the owners of four parcels of realty in Los Angeles, entered into a written agreement by which each bound himself and his successors by a continuing covenant that no part of his realty "be used or occupied by any person or persons not wholly of the white or Caucasian race."

The agreement provided that the restriction should be incorporated in "all papers and transfers" of the lots, that the restriction "be a covenant running with the land," that it was for the benefit of all the lots; and that if any of the lots should be used or occupied by any person not wholly of the white or Caucasian race, then in that event the covenantor who covenanted as to that lot, and his successors, would immediately become liable to those covenantors and their successors whose lots were not so occupied for all damages which they may have suffered by reason of the breach. The agreement was recorded May 8, 1945.

Page 537

On February 2, 1950, defendant and one Grace executed a grant deed, which was recorded, by which they conveyed one of the restricted lots to the Smallys. Defendant did not incorporate the restrictions in the deed nor make any reference therein to the agreement.

On September 3, 1950, defendant moved out of the house on the lot conveyed, and on September 4, 1950, persons not of the Caucasian race moved in and began to use and occupy the same. When defendant moved out of the house "she did so in order to permit persons known to her to be other that the Caucasian race to move into and occupy said house, and with the intention that persons not of the Caucasian race should move into and occupy said house." Defendant, in violation of said agreement, has permitted persons not wholly of the white or Caucasian race to occupy the property, and such occupancy is for residence. Damage, claimed depreciation in the value of plaintiffs' properties, is alleged.

Plaintiffs assert they are entitled to recover damages for breach of contract in two respects: (1) for failure of defendant to incorporate the restrictive agreement in her conveyance to the Smallys, and (2) as an original covenantor. Defendant counters (1) a cause of action is not stated for failure to incorporate the restrictive agreement in the conveyance because the Smallys took title with constructive notice of its terms; (2) a cause of action is not stated for permitting the use and occupancy of the realty by non-Caucasians because a covenantor is not liable for the subsequent breach of the covenant by a subsequent owner; and (3) a cause of action is not stated because of applicable provisions of the state and federal Constitutions. Plaintiffs reply (1) a cause of action for failure to incorporate the restrictive agreement in the conveyance is stated because in any event they would be entitled to nominal damages under Civil Code, section 1466; (2) a cause of action is stated because defendant made a valid agreement that something would not be done: when use and occupancy by a non-Caucasian occurred that which defendant agreed would not be done was done, for which defendant is liable in damages; and (3) enforcement of the agreement is not prohibited by any provision of the state or federal Constitution.

[247 P.2d 102] We first consider whether a cause of action is stated for damages for breach of contract under common law principles.

There is privity of contract between three of the plaintiffs

Page 538

and the defendant. Each was an original party to the covenant and contractually assumed its obligations. Each contracted concerning the use and occupancy of his land. Each bound himself that should his lot be used or occupied by non-Caucasians he would become liable to the others for whatever damage they may have suffered. As between themselves, in the absence of fraud or mistake, they are conclusively bound by their covenants if they are not contrary to public policy or violative of constitutional limitations. 1 When the lot as to which defendant covenanted was used and occupied by non-Caucasians liability accrued.

An action for breach of a covenant is an action on a contract. The ordinary remedy for the nonfulfillment of a covenant is that the delinquent party must respond in damages. 2 The fact that other remedies may be available to plaintiffs does not preclude their resort to an action for damages. 3

Goldberg v. Nicola, 319 Pa. 183 [178 A. 809, 98 A.L.R. 774], relied on by defendant, is not analogous. There it was held that a covenantor of a benefit attached to land is not liable, after parting with his title, for a breach occasioned by possessors of the land subject to the covenant. The holding stemmed from the fact that there was no personal responsibility apart from privity of estate.

It is not essential that we determine whether the covenant is in fact one running with the land, as defendant argues, although the complaint alleges that the agreement provided that it was, and the fact is admitted by the demurrer. 4

Page 539

If the covenant runs with the land, defendant, as an original covenantor, is not absolved thereby from the obligation of the covenant. 5

We hold that apart from the constitutional issue the complaint states a cause of action for damages.

Since we so conclude, it is not necessary to decide whether a cause of action is stated for the failure of defendant to incorporate the restrictive agreement in her conveyance to the Smallys. 6 We pass to consideration of the issue of constitutional power.

The parties agree, as they must, that the covenant, as such, is constitutionally a valid agreement; 7] that the conveyance by defendants [247 P.2d 103] to the Smallys was valid; 8 and that title passed.

In 1948 the Supreme Court of the United States decided Shelley v. Kraemer and McGhee v. Sipes, 334 U.S. 1 [68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441], and Hurd v. Hodge and Urciolo v. Hodge, 334 U.S. 24 [68 S.Ct. 847, 92 L.Ed. 1187], generally referred to as the Restrictive Covenant Cases. The admonition of these cases is that a state may not by judicial process enforce private rights derived from consensual agreements of private individuals where to do so would result in the infringement of civil liberties guaranteed by the Constitution of the United States.

Long prior to the Restrictive Covenant Cases, Judge Erskine M. Ross of the United States Circuit Court, the donor of the American Bar Association's Ross Essay Prize, in Gandolfo v. Hartman (1892 C.C.S.D. Cal.), 49 F. 181 [16 L.R.A. 277], was the first judicial voice to hold enforcement of a racial restrictive covenant prohibiting the use of real property by persons of a specified race invalid on constitutional

Page 540

grounds. 9 Other than Gandolfo v. Hartman, supra, judicial enforcement of covenants which have for their purpose the exclusion of persons of a specified, or anyone not of a designated, race from the use or occupancy of real property, was uniformly sustained over constitutional objections founded on the Fourteenth Amendment, including the equal protection clause and the due process clause. 10

The restriction in the Shelley case 11 was embodied in an agreement signed by thirty property owners of a St. Louis neighborhood. The agreement declared that no part of the property shall be occupied by any person not of the Caucasian race, and specifically restricted its use against occupancy by Negroes and persons of the Mongolian race for 50 years. One of the parcels was conveyed to Shelley, a Negro. An owner of property covered by the restrictions brought suit. The relief sought and granted by the Missouri court was an injunction restraining Shelley from taking possession of the covenanted parcel and a decree divesting him of title and revesting the title in his immediate grantor. The restrictive agreement in McGhee v. Sipes provided that the property should not be used or occupied by any person or persons except those of the Caucasian race. Injunctive relief was granted by the Michigan court.

The Supreme Court of the United States in these cases held: (1) private agreements which have for their purpose the exclusion of persons of designated race or color from the use or occupancy of real property, standing alone, do not violate any rights guaranteed by the Fourteenth Amendment; 12 (2) the actions of state courts and judicial officers

Page 541

are actions by the states [247 P.2d 104] within the meaning of the Fourteenth Amendment; (3) in granting judicial enforcement of such private agreements the courts of Missouri and Michigan acted to deny the excluded races the...

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8 practice notes
  • 204 Cal.App.2d 242, 26220, Abstract Inv. Co. v. Hutchinson
    • United States
    • California California Court of Appeals
    • 29 Mayo 1962
    ...Pursuant to rules 62 and 63 of the Judicial Council Rules on Appeal. [2] Which affirmed the California decision of Barrows v. Jackson, 112 Cal.App.2d 534. [3] Prior to its amendment in 1961, the section was applicable to 'all citizens' instead of 'all persons.'...
  • 203 Cal.App.2d 191, 25672, Atlas Terminals, Inc. v. Sokol
    • United States
    • California California Court of Appeals
    • 2 Mayo 1962
    ...lie for breach of a restrictive covenant is established by such cases as Joyce v. Krupp, 83 Cal.App. 391, 937-398; Barrows v. Jackson, 112 Cal.App.2d 534, 548. Appellant's assertion that there was no evidence to support the awards is too broad and general to raise the question. 'Appellant s......
  • 605 P.2d 709 (Or.App. 1980), CA 11261, Donaca v. Ivall
    • United States
    • Oregon Court of Appeals of Oregon
    • 21 Enero 1980
    ...been held in other jurisdictions to be contracts. See Sheridan v. Martinsen, 164 Mont. 383, 523 P.2d 1392 (1974); Barrows v. Jackson, 112 Cal.App.2d 534, 247 P.2d 99 (1952); Riley v. Boyle, 6 Ariz.App. 523, 434 P.2d 525 (1967). The Supreme Court has referred to such restrictions as " *......
  • 203 Cal.App.2d 567, 95, Grange Co. v. Simmons
    • United States
    • California California Court of Appeals
    • 15 Mayo 1962
    ...or executed by him.' (See Pedro v. County of Humboldt, 217 Cal. 493; Marshall v. Standard Oil Co., 17 Cal.App.2d 19 Barrows v. Jackson, 112 Cal.App.2d 534, 538.) In 14 California Jurisprudence 2d. Covenants, Etc., section 13, page 19, it is said: 'It should not be assumed that because a cov......
  • Free signup to view additional results
8 cases
  • 204 Cal.App.2d 242, 26220, Abstract Inv. Co. v. Hutchinson
    • United States
    • California California Court of Appeals
    • 29 Mayo 1962
    ...Pursuant to rules 62 and 63 of the Judicial Council Rules on Appeal. [2] Which affirmed the California decision of Barrows v. Jackson, 112 Cal.App.2d 534. [3] Prior to its amendment in 1961, the section was applicable to 'all citizens' instead of 'all persons.'...
  • 203 Cal.App.2d 191, 25672, Atlas Terminals, Inc. v. Sokol
    • United States
    • California California Court of Appeals
    • 2 Mayo 1962
    ...lie for breach of a restrictive covenant is established by such cases as Joyce v. Krupp, 83 Cal.App. 391, 937-398; Barrows v. Jackson, 112 Cal.App.2d 534, 548. Appellant's assertion that there was no evidence to support the awards is too broad and general to raise the question. 'Appellant s......
  • 605 P.2d 709 (Or.App. 1980), CA 11261, Donaca v. Ivall
    • United States
    • Oregon Court of Appeals of Oregon
    • 21 Enero 1980
    ...been held in other jurisdictions to be contracts. See Sheridan v. Martinsen, 164 Mont. 383, 523 P.2d 1392 (1974); Barrows v. Jackson, 112 Cal.App.2d 534, 247 P.2d 99 (1952); Riley v. Boyle, 6 Ariz.App. 523, 434 P.2d 525 (1967). The Supreme Court has referred to such restrictions as " *......
  • 203 Cal.App.2d 567, 95, Grange Co. v. Simmons
    • United States
    • California California Court of Appeals
    • 15 Mayo 1962
    ...or executed by him.' (See Pedro v. County of Humboldt, 217 Cal. 493; Marshall v. Standard Oil Co., 17 Cal.App.2d 19 Barrows v. Jackson, 112 Cal.App.2d 534, 538.) In 14 California Jurisprudence 2d. Covenants, Etc., section 13, page 19, it is said: 'It should not be assumed that because a cov......
  • Free signup to view additional results