Malicke v. Milan

Decision Date05 January 1948
Docket NumberNo. 32.,32.
PartiesMALICKE et al. v. MILAN et ux.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Thos. J. murphy, judge.

Suite by Joseph Malicke and Stella Malicke, his wife, and others against John T. Milan and Nettie L. Milan, his wife, to enforce a racial restriction agreemen t. Decree for plaintiff, and defendants appeal.

Affirmed.

Before the Entire Bench.

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

Blaine & Dombrowski, of Detroit, for appellees.

SHARPE, Justice.

This is a suit to enforce a racial restriction agreement which reads in part:

“that we nor either of us will let, lease or rent any part of said subdivision for occupancy by any person or persons not of Caucasian Race, and that we nor e ither of us will in any way permit or suffer any part of said subdivision to be occupied by any person or persons not of the Caucasian Race;

“It being the intention of the parties hereto to restrict the property now owne d in the said subdivision, by the parties hereto, to occupancy by persons of th e Caucasian Race exclusively.”

Plaintiffs Joseph Malicke and Stella Malicke, his wife, are the record title ho lders of land in the city of Detroit described as lot No. 242 of Dovercourt Par k Subdivision. Plaintiffs Altert Szaradowski and Stanislawa Szaradowski, his w ife, are the record title holders of lot No. 128 in the above subdivision. Pla intiff Home Owners Improvement Association is a Michigan non-profit corporation consisting of a great number of record title holders and residents of the abov e subdivision.

On September 29, 1939, a numer of owners of lots in the subdivision entered into a reciprocal restriction agreement which was recorded in the office of the register of deeds for Wayne county, Michigan, on January 17, 1940, and reads as follows:

“Know all men by these present that we the undersigned and each of us, being th e owner's of one or more lots in the ‘Dovercourt Park Subdivision of part of th e Southeast one-quarter ( 1/4) of Section Four (4), Town 2 South, Range 11 Eas t, Springwells Township (now City of Detroit) Wayne County, Michigan, according to the Plat thereof as recorded in Liber 34, at Page 89 of Plats, Wayne County Records,’ in consideration of the mutual covenants herein contained and for th e purpose of making and maintaining said subdivision as a desirable residential and business area for persons of the Caucasian Race, do hereby agree to and wi th each other for ourselves, and for our and each of our heirs, executors, admi nistrators and assigns that we nor either of us will let, lease or rent any par t of said subdivision for occupancy by any person or persons not of the Caucasi an Race, and that we nor either of us will in any way permit or suffer any part of said subdivision to be occupied by any person or persons not of the Caucasi an Race;

“It being the intention of the parties hereto to restrict the property now owne d in the said subdivision, by the parties hereto, to occupancy by persons of th e Caucasian Race exclusively.

“It is also mutually agreed by and between the parties hereto that ‘Exhibit A’ hereto attached and made a part of this restrictive agreement, shows, by lot nu mber, the lot or lots in said subdivision that each of the persons executing th is agreement owns, and that siad ‘Exhibit A’ shall have the same force and effe ct for the purpose of this agreement as if the same were written into the body of this agreement.”

The above restrictive agreement was signed by plaintiffs Joseph Malicke and wif e, Albert Szaradowski and wife, and also by Steve Tomecko and Mary Tomecko, his wife. When the agreement was signed, Steve Tomecko and wife were the owners o f lot No. 252 in the above subdivision. On October 23, 1942, Tomecko and wife conveyed the above lot to Michael Jovan and Helen Jovan, his wife, the deed to which was recorded in the office of the register of deeds for Wayne county. On August 18, 1945, Jovan and wife conveyed the above lot to defendants John T. M ilan and Nettie L. Milan, his wife, who began occupancy of the property approxi mately on the date of the sale to them.

On September 29, 1945, plaintiffs filed a bill of compalint in the circuit cour t of Wayne county alleging that defendant Nettie L. Milan is not of the Caucasi an race and that she and her husband are occupying the premises in question con trary to the restrictive agreement. Plaintiffs ask that defendants be enjoined from violating the restrictive agreement. Defendants filed an answer in which they neither admit nor deny that defendant Nettie L. Milan is of the Negro or colored race; they allege that the bill of complaint does not give the court j urisdiction to hear and determine the matters alleged in plaintiffs' bill of co mplaint; that the relief prayed for is contrary to Michigan Constitution 1908, art. 2, § 16; that the restriction against occupancy, based on race, creed or color of the occupant is void under the 14th Amendment to the Federal Constitu tion; and that the restrictive covenant relied upon by plaintiffs is against the public policy of the State of Michigan.

The cause came on for trial and a decree was entered holding that defendant Net tie L. Milan is a colored person of the Negro race; that the property owned an d occupied by defendants is restricted; and that Nettie L. Milan be enjoined f rom using or occupying said property.

Defendants appeal and urge that the court erred in holding that cross-examinati on of a witness is limited to matters brought out on direct examination. In th e case at bar a witness was called by plaintiffs and testified as to the color of defendant Nettie L. Milan. Upon cross examination the witness was asked if she knew the western boundary of the subdivision. Upon objection the court hel d that the witness could only be cross examined upon matters about which the wi tness testified.

The general rule is that the latitude to be allowed on cross examination is largely within the discretion of the trial court. See Ritchie v. Stenius, 73 Mich. 563, 41 N.W. 687;Georgia v. Bond, 114 Mich. 196, 72 N.W.232;Cummings v. Detroit United Ry., 163 Mich. 304, 128 N.W. 206.

In People v. Dellabonda, 265 Mich. 486, 499, 251 N.W. 594, 598, we said; “One of the elementary principles of cross-examination is that the party having the right to cross-examine has a right to draw out from the witness and lay before the jury anything tending or which may tend to contradict, weaken, modify, or explain the testimony or affect the credibility of the witness.”

In People v. MacCullough, 281 Mich. 15, 25, 274 N.W. 693, 697, we said: “So fa r as the cross-examination of a witness relates either to facts at issue or rel evant facts, it is a matter of right. But when its object is to ascertain the accuracy or credibility of a witness, its method and duration are subject to th e discretion of the trial judge, and, unless abused, its exercise is not the su bject of review. * * * A witness may not be cross-examined as to any facts whi ch, if admitted, would not only be collateral but wholly irrelvant to the matte r in issue and which would in no way tend to affect his credit, nor can a witne ss be cross-examined as to an irrelvant matter in order to contradict him. * * * The latitude of cross-examination should not ordinarily go so far as to perm it the introduction of evidence that has no legitimate relation to any of the i ssues on trial, which can in no way affect the credibility of the witness subje ct to cross-examination, and which is of such a character as to be likely to be misapplied by the jury.”

In the case at bar the boundary of the subdivision was not in issue and testimony relating thereto was not material to the issues involved. We hold that under such circumstances it was not error to deny the defense the right of cross examination upon the subject objected to.

It is next argued that the instrument relied upon by plaintiffs could not b e legally recorded and thereby provide notice to defendants.

Section 13372, 3 Comp. Laws 1929, Stat.Ann. § 26.761, provides: “Every register of deeds shall, upon the payment of his proper fees, record or cause to be recorded, at length, upon the pages of the proper record books in his office * * * all deeds, mortgages, maps and instruments or writings authorized by law to be recorded in his office, and left with him for that purpose * * *.

Section 13309, 3 Comp. Laws 1929, Stat.Ann. § 26.552, provides: “The term ‘conveyance,’ as used in this chapter, shall be construed to embrace every instrum e nt in writing, by which any estate or interest in real estate is created, al i en ed, mortgaged or assigned; or by which the title to any real estate may b e aff ected in law or equity, except wills, leases for a term no exceeding t hr ee (3) years, and executory contracts for the sale or purchase of lands.”

Plaintiffs urge that under section 13309, supra, a racial restriction agreement may be legally recorded as it is within the definition of a “conveyance” set f orth in the above section.

In Allen v. City of Detroit, 167 Mich. 464, 133 N.W. 317, 320 (36 L.R.A., N.S., 890), the court said:

“Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, whi ch cannot be taken for the public use without due process of law and compensati on therefore; * * *.

“The contention that the city under its general police power may ignore this bu ilding restriction, and erect its fire engine house within the restricted distr ict because it is necessary for the public good and to protect the lives and pr operty of citizens in that locality, is not tenable....

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