Barrows v. Jackson

Decision Date06 August 1952
Citation247 P.2d 99,112 Cal.App.2d 534
CourtCalifornia Court of Appeals Court of Appeals
PartiesBARROWS et al. v. JACKSON. Civ. 18717.

John C. Miles and J. Wallace McKnight, Los Angeles, for appellants.

John W. Preston, Los Angeles, for Neighborly Endeavor, Inc., United Neighbors, Inc., United Homeowners, Inc., Vermont Square Neighbors, Inc., Harvard Neighbors Ass'n, Neighborhood Protective Ass'n, Inc., Steadfast Neighbors Committee, Angelus Mesa Neighbors Ass'n, Loyal Neighbors Ass'n, Citizens United, Inc., LaFayette Square Improvement Ass'n, Hancock Park Neighbors, Inc., The Park Community Ass'n, and Associated Neighbors, amici curiae on behalf of appellants.

Sims & Wallbert and Loren Miller, Los Angeles, for respondent.

Rosalind G. Bates, Los Angeles, for Women's International Club, amicus curiae on behalf of respondent.

George E. Bodle and James Landye, Los Angeles, for Los Angeles Central Labor Council, amicus curiae on behalf of respondent.

Basil Feinberg, Los Angeles, for Los Angeles International Ladies Garment Workers Union, amicus curiae on behalf of respondent.

Saburo Kido, Los Angeles, for Japanese American Citizens League, amicus curiae on behalf of respondent.

Fred Okrand, Los Angeles, for Greater Los Angeles C. I. O. Council, amicus curiae on behalf of respondent.

Everette Porter, Los Angeles, for National Ass'n for Advancement of Colored People, amicus curiae on behalf of respondent.

A. L. Wirin, and Abraham Gorenfeld, Los Angeles, for American Civil Liberties Union, Southern California Branch, amicus curiae on behalf of respondent.

David Ziskind, Los Angeles, for American Council on Human Rights; American Jewish Committee; Anti-Defamation League, B'nai B'rith; Eagle Rock Council for Civic Unity; Jewish Labor Committee Los Angeles Dist. Council, Jewish War Veterans, U.S.A.; Los Angeles Urban League; Pasadena Y. W. C. A.; Social Action Department, Congregational Conference of Southern California and Southwest; Santa Monica Y. W. C. A.; Southern California, B'nai B'rith Women; Southern Division, California Cooperative League; and The Christines, amici curiae on behalf of respondent.

VALLEE, Justice.

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 and 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.

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 than 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.

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 andthe 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 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 to the Smallys was valid; 8 and that title passed.

In 1948 the Supreme Court of the United States decided Shelley v. Kraemer (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 (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, C.C.S.D.Cal.1892, 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 grounds. 9, 10 Other than Gandolfo v. Hartman, supra, judicial enforcement of covenants which have for their purpose the exclusion of persons of a specified, or any one 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. 11

The restriction in the Shelley case 12 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...

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7 cases
  • Mulkey v. Reitman
    • United States
    • California Supreme Court
    • May 10, 1966
    ...covenants. The key to both Shelley and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, (affirming Barrows v. Jackson, 112 Cal.App.2d 534, 247 P.2d 99) where the courts refused to recognize a right to damages in neighboring property owners seeking recovery after breach of a r......
  • Barrows v. Jackson
    • United States
    • U.S. Supreme Court
    • June 15, 1953
    ...The trial court sustained a demurrer to the complaint, the District Court of Appeals for the Second Appellate District affirmed, 112 Cal.App.2d 534, 247 P.2d 99, and the Supreme Court of California denied hearing. We granted certiorari, 345 U.S. 902, 73 S.Ct. 644, because of the importance ......
  • PRAIRIE HILLS WATER v. Gross
    • United States
    • South Dakota Supreme Court
    • November 6, 2002
    ...Martinsen, 164 Mont. 383, 523 P.2d 1392, 1395 (1974); Riley v. Boyle, 6 Ariz.App. 523, 434 P.2d 525, 528 (1967); Barrows v. Jackson, 112 Cal.App.2d 534, 247 P.2d 99, 102 (1952); Ludgate v. Somerville, 121 Or. 643, 256 P. 1043, 1045 (1927). [¶ 43.] Grosses, however, first argue that there wa......
  • Abstract Inv. Co. v. Hutchinson
    • United States
    • California Court of Appeals Court of Appeals
    • May 29, 1962
    ...1 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, 247 P.2d 99.3 Prior to its amendment in 1961, the section was applicable to 'all citizens' instead of 'all ...
  • Request a trial to view additional results

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