Mays v. Burgess

• Decision Date: 31 October 1945
• Docket Number: No. 9119.,9119.
• Citation: 152 F.2d 123
• Parties: MAYS v. BURGESS et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

152 F.2d 123 (1945)

MAYS v. BURGESS et al.

No. 9119.

United States Court of Appeals District of Columbia.

Argued October 23, 1945.

Decided October 31, 1945.

Messrs. James A. Cobb and William H. Hastie, both of Washington, D. C., with whom Messrs. George E. C. Hayes and Leon A. Ransom, both of Washington, D. C., were on the brief, for appellant.

Mr. Henry Gilligan, of Washington, D. C., for appellees.

Before GRONER, Chief Justice, and EDGERTON and CLARK, Associate Justices.

GRONER, C. J.

This is a second appeal in this case. When it was here before we affirmed, with costs, and by our mandate ordered the District Court to carry its judgment into effect.

The case concerned the validity of a "restrictive covenant" running with the land. The District Court on the original trial held the covenant in full force and effect and directed defendant Mays, whose purchase violated the covenant, to remove herself and all of her personal effects from the premises within sixty days from the date of judgment (June 30, 1944).

On the original appeal here it was argued that the judgment should be reversed — "(1) because the character of the neighborhood has so changed as to render the original purpose unenforceable; (2) that the covenant constitutes an undue and unlawful restraint on alienation; (3) that it is not binding on the appellants, who are the successors in interest of the original covenantors, because of lack of privity; and (4) it is contrary to public policy and violates the Constitution of the United States, particularly the Fifth and Fourteenth Amendments and Section 1 of the Thirteenth Amendment and the statutes enacted thereunder, particularly R.S.1977, 1978 and 5508 8 U.S.C.A. §§ 41, 42; 18 U.S.C.A. § 51."

We held, for reasons stated in the opinion, that there was no merit in any of the contentions, and specifically that appellant had purchased with both actual and constructive notice of the terms of the covenant. 79 U.S.App.D.C. 343, 147 F.2d 869. Thereafter application was made to the Supreme Court for certiorari and denied June 18, 1945, 65 S.Ct. 1406.

Appellant, however, refused and neglected to comply with the judgment of the District Court, and accordingly, September 3, 1945, a motion was filed by appellees to have appellant adjudged in contempt. The motion came on for hearing September 27, 1945, and appellant filed in opposition thereto an affidavit made by herself and one made by a District of Columbia real estate agent. The purport of the two affidavits was (1) that appellant had made diligent effort to obtain another home in which to live, without success, and (2) that since the original judgment in this case four colored families had purchased property in the adjoining block (the restrictive covenants on the land in that block having expired subsequent to the date of the original judgment). The District Court, September 27, 1945, entered an order in contempt to be enforced, unless appellant removed from the premises on or before October 10, 1945. We extended the period to November 1, 1945.

Appellant thereupon took an appeal to this court.

Enough has been said to show that the judgment of the District Court, affirmed by this court, established the law of the case. Thereafter the District Court had no jurisdiction, except to carry out the mandate of this court. No principle of law is better established than the rule that a District Court is bound "by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution * * *." Sibbald v. United States, 12 Pet. 488, 492, 9 L. Ed. 1167; Ex parte Union Steamboat Co., 178 U.S. 317, 319, 20 S.Ct. 904, 44 L.Ed. 1084. The rule has been reiterated by the Supreme Court time and again, as will readily be seen by an examination of the following cases: Kansas City So. R. Co. v. Guardian Trust Co., 281 U.S. 1-11, 50 S.Ct. 194, 74 L.Ed. 659; Ex parte Union Steamboat Co., 178 U.S. 317, 20 S.Ct. 904, 44 L. Ed. 1084; In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; Gaines v. Caldwell, 148 U.S. 228, 13 S.Ct. 611, 37 L.Ed. 432; Ex parte Washington & Georgetown R. Co., 140 U.S. 91, 11 S.Ct. 673, 35 L.Ed. 339. In Skillern's Ex'rs v. May's Ex'rs, 6 Cranch 267, 3 L.Ed. 220, the Supreme Court, on certification of the question whether the court below, upon discovery of the fact that it had had no original jurisdiction in the case, could dismiss the proceedings, answered that as the merits of the case had been finally decided and its mandate required only the execution of the decree, the Circuit Court was bound to carry that decree to execution, although the jurisdiction of that Court was not alleged in the proceeding. See also Washington Bridge Co. v. Stewart, 3 How. 413, 11 L.Ed. 658. In Ex parte Dubuque & Pacific R. Co., 1 Wall. 69, 17 L.Ed. 514, a case in which the Supreme Court had reversed the judgment of the Circuit Court and remanded the cause to enter judgment for the other party, and the court below had thereafter received affidavits showing new facts and demanding a new trial, it (the Supreme Court) ordered the proceedings vacated on the ground that the court had no power to set aside the judgment, "its authority extending only to executing the mandate." To the same effect is In re Potts, 166 U.S. 263, 17 S.Ct. 520, 521, 41 L.Ed. 994. There a bill in equity for infringement of letters patent was denied in the lower court. On appeal the Supreme Court decided that the patent was valid and had been infringed, and the case was remanded. The lower court entered a decree in conformity with that mandate and awarded a perpetual injunction against defendant infringers. Defendant infringers then filed a petition for a rehearing on the basis of newly discovered evidence and, after rehearing, the court entered a decree that the letters patent were void.

The Supreme Court, citing In re Sanford Fork & Tool Co., supra, pointed out that the instant case, unlike the Sanford case, had been heard not merely upon a question of sufficiency of pleading but upon the whole merits, and, accordingly, the validity of the patent must be considered as finally settled and not open to reconsideration by the lower court. A rule to prevent such further proceedings was held to be "essential to the proper administration of the law, and to a reasonable termination of litigation between the parties in chancery suits."

Many other cases of a like nature and with a similar result might be cited.

When this case was here before it was argued at great length that the character of the neighborhood had changed since the making and recording of the covenants, and the points of hardship and lack of reasonable housing accommodations in the District of Columbia, now reiterated, were stressed and urged. We considered both points and held that they were not sufficient to justify the abrogation of the rule of law which this court had applied consistently in similar cases over a period of twenty-five years. The fact that since the case was originally heard below, a similar covenant, covering property in an adjoining block, has expired by time limitation and four purchases by colored people have been made, would not, even if it had occurred before decision, have changed the result. As we said in our former opinion, the neighborhood, consisting of approximately one thousand homes, churches and business properties, was exclusively occupied by persons of the white race, under similar restrictive agreements or deed covenants. The infiltration of four colored families would not have required our applying the rule we did in Hundley v. Gorewitz, 77 U.S.App.D.C. 48, 132 F.2d 23, where we held the restrictive condition had failed by reason of the change in the neighborhood, so that its enforcement would impose a hardship rather than an advantage to those who complied with its terms.

The case having been originally heard in the District Court upon the whole merits, and the judgment of that court affirmed by this court, the case must be deemed to be finally settled. The appeal is without merit and accordingly the judgment below is affirmed and the appeal dismissed, with costs.

Affirmed.

EDGERTON, Associate Justice (dissenting).

In Mays v. Burgess,¹ this court decided that the injunction of June 30, 1944 was valid. That decision is still law. But it does not follow that the order of September 27, 1945, which is now on appeal, should be affirmed. By this order the District Court without making findings, or even considering testimony, on vital questions of fact,² has committed appellant for contempt unless she complies with the injunction of 1944.

This court's former decision was based primarily on one essential finding of fact. This finding was that the neighborhood of the premises in suit continued to be, as it had been when the restrictive covenant was made, entirely white, and that enforcement of the covenant would therefore accomplish its purpose of preserving such a neighborhood and maintaining property values. This finding was based, in turn, largely upon an underlying finding that "no colored people occupy any property in the particular block with which we are concerned, nor in the block adjacent thereto on First Street in either direction."³ Beyond present dispute the facts then were as this court stated them. But in the present contempt proceeding, appellant has filed in the District Court an affidavit which states that "since the time of the said decree and judgment referred to and the filing of the motion to adjudge in contempt * * * there has been a change in the neighborhood in that four colored families have moved in the adjoining 2100 block of First Street, Northwest, showing that the trend is definitely colored, and that others have purchased property in that locality but not yet occupied same." Nothing in the record contradicts this testimony.

The former decision of this...