Tovey v. Levy

• Decision Date: 18 November 1948
• Docket Number: No. 30577.,30577.
• Citation: 82 N.E.2d 441,401 Ill. 393
• Parties: TOVEY et al. v. LEVY et al.
• Court: Illinois Supreme Court

401 Ill. 393

82 N.E.2d 441

TOVEY et al.

v.LEVY et al.

No. 30577.

Supreme Court of Illinois.

Nov. 18, 1948.

Appeal from Superior Court, Cook County; Robert E. Crowe, judge.

Suit by George E. Tovey and others against Hyman L. Levy and others, to restrain the defendants and any other persons claiming by, through, or under them from leasing or permitting occupancy by any Negroes of certain premises, and from permitting acquisition of any interest therein by any Negroes in contravention of covenants of an agreement, and to have all contracts, leases, deeds or sales in contravention of covenants declared void, and for eviction of any Negroes occupying premises. From a decree in favor of the plaintiffs, the defendants appeal, and the plaintiffs move to dismiss the appeal.

Motion to dismiss appeal denied, and decree reversed.

Loring B. Moore and Sidney P. Brown, both of Chicago, for appellants.

Rathje, Kulp, Sabel & Sullivan and Franklin J. Stransky, all of Chicago (Joseph J. Sullivan, Jr., of Chicago, of counsel), for appellees.

SIMPSON, Justice.

February 21, 1945, appellees George E. Tovey, Mamie P. Tovey, May Minton, Robert H. Beaumont, Mae Beaumont, Arthur Hansen and Mary G. Hansen filed their amended complaint in the superior court of Cook County against Hyman L. Levy and Christine J. Levy, his wife. Cadillac Hotel Corporation, and Illinois corporation, Joseph J. Allen et al., seeking a writ of injunction to restrain them, and any other persons claiming by, through or under them, from leasing to or permitting the occupancy by buy Negro or Negroes of the premises therein described, referred to herein as parcel 5, and from permitting the acquisition of any interest therein by any Negro or Negroes in contravention of the covenants, conditions and provisions of the agreement therein sued upon. The amended complaint also prayed that a decree be entered declaring null and void any and all contracts, leases, deeds or sales of said premises, or any portion thereof, to or by any Negro or Negroes in contravention of the covenants, conditions and provisions of said agreement, and for the removal and eviction of any Negro or Negroes who shall occupy said premises or any portion thereof in violation of said agreement, either prior or subsequent to the filing of the complaint.

The agreement referred to in the complaint was one entered into May 25, 1928, by the owners and persons interested in approximately 64 parcels of real estate within an area bounded on the north by West Sixtieth Street, on the south by West Sixty-first Street, on the east by Stewart Avenue and on the west by Normal Boulevard, all in the city of Chicago, Cook County, Illinois, including the owners of the premises referred to as parcel 5. The agreement provided that none of the parties thereto would sell, give, convey or lease to any Negro or Negroes or permit the occupancy of any portion of the therein described property owned by them by any Negro or Negroes (excepting the occupancy thereof by Negro janitors, chauffeurs, or house servants actually employed as such for services in and about the premises as occupied by them as aforesaid) prior to January 1, 1949. The agreement further provided that it shall be binding upon and for the benefit of and may be enforced by and against each party thereto, his successors and assigns, and the heirs, executors, administrators and successors of them, respectively. The agreement further provided that it should be of no force or effect unless signed by the owners of 75 per cent of the frontage of said tracts, and recorded in the office of the recorder of deeds of Cook County, Illinois, on or before March 31, 1929.

The amended complaint alleged the due execution and recording of said agreement and that it became and was in effect; that parcel 5 comprised lots 9 and 10 in Gunn's subdivision and was commonly known as 417-421 West Sixtieth Street, Chicago, Illinois, and was improved with a three-story brick building containing many apartments and rooms for occupancy by lessees and tenants; that on September 16, 1944, the owners of said parcel 5 conveyed the same by deed of that date to the appellants Hyman L. Levy and Christene J. Levy, his wife, expressly subject to the restrictions as contained in said agreement; that thereafter said Levy and wife executed a deed purporting to convey the same premises to the appellant Cadillac Hotel Corporation, an Illinois corporation; that said hotel corporation immediately thereafter leased the premises (parcel 5) to the appellant Joseph J. Allen, who is a Negro, and that Allen has leased or subleased and has permitted the occupancy of said premises, or a portion thereof, by other Negroes, the other appellants herein, none of whom occupied the premises as a janitor, chauffeur or servant, etc. The amended complaint alleged that the leasing to and occupancy by a Negro or Negroes is a breach and violation of the covenants, conditions and provisions contained in the agreement and tends to depreciate the value of complainants' property and to cause them irreparable loss and injury.

The prayer was for injunction to restrain the leasing to, or permitting the occupancy by, Negroes, of the said premises or any portion thereof, and from permitting the acquisition of any interest therein by any Negro in contravention of the covenants of the aforesaid agreement, and further that all contracts, leases, deeds or sales concerning said premises or any portion thereof to or by any Negro be declared void as in contravention of the covenants of said agreement, and further that any and all Negroes be evicted from the premises.

After motions to dismiss had been overruled, appellants answered the amended complaint as amended, denying that the said agreement was executed by 75 per cent of the owners of the frontage of the premises covered by the agreement; attacked the capacity and authority of some of the signers; denied that the agreement had been properly executed, acknowledged and delivered and that it was an instrument entitled to be recorded; that the instrument recorded consisted of separate documents bound together and not one instrument; that all persons interested were not made parties, and alleged that said agreement never became operative or effective because of the failure of compliance with the conditions precedent and terms provided therein for it to become operative and effective.

The answer refers to that part of the agreement defining the term ‘Negro’ as including every person having one-eighth or more of Negro blood, or any appreciable admixture of Negro blood, and every person who is what is commonly known as a colored person, and says that the definition is ambiguous, indefinite, equivocal, unscientific and without legal certainty.

The answer avers that by reason of the ownership and lawful and peaceful occupancy of said parcel 5 the appellants have a vested right therein and have a Federal right and privilege to own, hold and possess the same under sections 1977-1978 of the Revised United States Statutes (U.S.Code Annotated, Title 8, ss 41, 42) and that by virtue of said Federal laws and of section I of the fourteenth amendment of the Federal constitution, and by virtue of the common law of he State of Illinois, they may not be divested of their said rights and privileges without violating said statutes and constitutional provisions and the dueprocess clause of the Illinois constitution and the laws of the State of Illinois; that they are citizens of the United States and have the aforementioned fundamental property rights by virtue of their national citizenship under said fourteenth amendment and under said Federal...