Sipes v. McGhee

• Decision Date: 07 January 1947
• Docket Number: No. 90.,90.
• Citation: 25 N.W.2d 638,316 Mich. 614
• Parties: SIPES et al. v. McGHEE et ux.
• Court: Michigan Supreme Court

316 Mich. 614

25 N.W.2d 638

SIPES et al.

v.McGHEE et ux.

No. 90.

Supreme Court of Michigan.

Jan. 7, 1947.

Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Action by Benjamin J. Sipes and others against Orsel McGhee and his wife to enforce a covenant containing racial restrictions on occupancy of real property. From a decree for plaintiffs, defendants appeal.

Affirmed.

Before the Entire Bench.

Willis M. Graves and Francis M. Dent, both of Detroit, for defendants and appellants.

Younglove & Chockley, of Detroit, for plaintiffs and appellees.

Benjamin J. Safir, of Detroit (Alan N. Brown, of Detroit, of counsel), for American Jewish Congress (Detroit Section), amicus curiae.

Ernest Richards and Hobart Taylor, Jr., both of Detroit, for Wolverine Bar Ass'n, amicus curiae.

Ernest Goodman, of Detroit, for Civil Rights Committee of the Detroit Chapter, National Lawyers Guild, amicus curiae.

Maurice Sugar, General Counsel, and Morton A. Eden, Associate Counsel, both of Detroit, for International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAWCIO).

Donald P. Schuur, of Detroit, for Ardmore Ass'n, Inc., and others, amicus curiae.

Earl B. Dickerson, Loring B. Moore, and Richard E. Westbrooks, all of Chicago, Ill. (George N. Leighton, of Chicago, Ill., of counsel), for National Bar Ass'n, amicus curiae.

BUSHNELL, Justice.

Plaintiffs Benjamin J. Sipes, Anna C. Sipes, and others own and occupy property located in Seebaldt's subdivision and Brooks and Kingon's subdivision on Seebaldt avenue, between Firwood and Beech-wood avenues, in the City of Detroit.

Defendants Orsel McGhee and Minnie S. McGhee, his wife, own and occupy property located on the same street in Seebaldt's subdivision. All of the properties occupied by the parties hereto are encumbered by the following recorded covenant:

‘This property shall not be used or occupied by any person or persons except those of the Caucasion race.’

Defendants seek reversal of a decree upholding and enforcing this restriction. In order to obtain that result, this court is asked to overrule its holding in Parmalee v. Morris, 218 Mich. 625, 188 N.W. 330,38 A.L.R. p. 1180, where a restriction was upheld, which read:

‘Said lot shall not be occupied by a colored person, nor for the purpose of doing a liquor business thereon.’

The questions involved in defendants' appeal concern the execution of recorded instruments relied upon by plaintiffs, the proof of racial identity of the defendants, and the uncertainty of the language of the covenant and its validity.

Originally there were no racial restrictions affecting the property in question. Subsequently, certain property owners, in the block in which defendants home is located, entered into mutual agreements imposing the above quoted restriction. These various agreements were recorded in the office of the register of deeds of Wayne county on September 7, 1935. The agreements provide that the restriction in question should not be effective unless at least 80 per cent. of the property fronting on both sides of the street in the block is subjected ‘to this or a similar restriction.’ The deed running to defendants, which is dated November 30, 1944, and recorded on December 1, 1944, is ‘subject to existing restrictions as of record.’

The testimony taken was not extensive and decision turns here, as it did in the circuit court, principally on legal questions. The main factual issue was with respect to the racial identity of the defendants. Sipes testified, over objections as to his qualifications as an expert, that defendants and their two sons are colored people. On cross-examination, the testified:

‘I have seen Mr. McGhee, and he appears to have colored features. They are more darker than mine. I haven't got near enough to the man to recognize his eyes. I have seen Mrs. McGhee, and she appears to be the mullato type.’

Defendants did not take the witness stand, and the only testimony produced in their behalf was that of Dr. Norman D. Humphrey, an assistant professor of Sociology and Anthropology at Wayne University. He expressed the opinion that there is no simple way in which to determine whether a man is a member of the Mongoloid, Caucasoid, or Negroid race. He explained that such classifications are very difficult and cannot be determined without scientific tests. Melvin Tumin, an instructor in the same department, stated that he agreed with the testimony of Dr. Humphrey.

The trial judge did not mention this subject in the written opinion which he filed, but the circuit court decree contains a finding-‘that defendants, Orsel McGhee and Minnie S. McGhee, his wife, are not of the Caucasian race but are of the colored or negro race.’

The testimony of Sipes is sufficient to sustain this finding. See People v. Dean, 14 Mich. 406, 423.

Appellants claim that the restrictive agreement was not properly executed by at least 80 per cent. of the property owners in the block. The signature of one of the property owners was acknowledged before a notary public in Indiana. There is no certificate of the clerk of a court of record or the secretary of state of Indiana attached showing that the notary public who executed the acknowledgement had authority to do so on the date mentioned.

Under the uniform acknowledgment act, 3 Comp.Laws 1929, § 13333, Stat.Ann. § 26.604, it was held in Reid v. Rylander, 270 Mich. 263, 258 N.W. 630, that such certificate was not necessary, the notary's seal of office being sufficient.

Defendants also question the validity of the group acknowledgments and the authority of certain corporate officers to execute the restrictive agreement. Our de novo examination of the recorded instruments discloses that they were properly executed and acknowledged by the owners of more than 80 per cent of the property covered by the restriction.

The policy was early established in this State that courts will uphold acknowledgments wherever possible and will not suffer conveyances or proof of them to be defeated by technical or unsubstantial objections. See Morse v. Hewett, 28 Mich. 481;Nelson v. Graff, 44 Mich. 433, 6 N.W. 872;King v. Merritt, 67 Mich. 194, 34 N.W. 689; and Carpenter v. Dexter, 8 Wall. 513, (19 L.Ed. 426).

Appellants argue that the restriction under consideration is void for uncertainty. This argument is based upon the following quotation from In the Matter of the Application of Drummond Wren, Supreme Court of Ontario, No. 669-45, decided in October, 1945, where that trial court held that the phrase, ‘Land not to be sold to Jews or persons of objectionable nationality,’ was too indefinite to be enforceable. Mr. Justice Mackay said in that case:

‘Counsel for the applicant contended before me that the restrictive covenant here in question is void for uncertainty. So far as the words ‘persons of objectionable nationality’ are concerned, the contention admits of no contradiction. The conveyancer who used these words surely must have realized, if he had given the matter any thought, that no court could conceivably find legal meaning in such vagueness. So far as the first branch of the covenant is concerned, that prohibiting the sale of the land to ‘Jews,’ I am bound by the recent decision of the House of Lords in Clayton v. Ramsden, (1943) 1 All. E.R. 16, to hold that the covenant is in this respect also void for uncertainty; and I may add, that I would so hold even if the matter were res integra. The Law Lords in Clayton v. Ramsden were unanimous in holding that the phrase ‘Jewish parentage’ was uncertain and Lord Romer was of the same opinion in regard to the phrase ‘of Jewish faith.’ I do not see that the bare term ‘Jews' admits of any more certainty.’

This observation could not be made concerning the language of the restriction now under consideration. It is difficult to see how language could be more certain than that employed, i. e., ‘This property shall not be used or occupied by any person or persons except those of the Caucasian race.’

No one could contend either that persons of the Mongoloid or Negroid races are embraced within the term ‘Caucasian,’ or that this rerm does not specifically exclude all other races. The covenant in question is not void on the ground that it is uncertain.

The principle that contracts in contravention of public policy are not enforceable should be applied with caution, and only in cases plainly within the reasons on which that doctrine rests. Skutt v. City of Grand Rapids, 275 Mich. 258, 264, 266 N.W. 344. In this same case this court adopted the meaning of public policy from Pittsburgh, C. C. & St. L. R. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, 506, L.R.A. 1917D, 641, 643, Ann.Cas.1918B, 286:

‘What is the meaning of ‘public policy’? A correct definition, at once concise and comprehensive, of the words ‘public policy,’ has not yet been formulated by our courts. Indeed, the term is as difficult to define with accuracy as the word ‘fraud’ or the term ‘public welfare.’ In substance, it may be said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man's plain, palpable duty to his fellow men, having due regard to all the circumstances of each particular relation and situation.

‘Sometimes such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people-in their clear consciousness and conviction of what is naturally and inherently just and right between man and man. It regards the primary principles of equity and justice and is sometimes expressed under the title of social and industrial justice, as it is conceived by our body politic. When a course of conduct is cruel or shocking to the average man's...