Meade v. Dennistone

• Decision Date: 11 January 1938
• Docket Number: 26.
• Citation: 196 A. 330,173 Md. 295
• Parties: MEADE v. DENNISTONE et al
• Court: Maryland Court of Appeals

196 A. 330

173 Md. 295

MEADE v. DENNISTONE et al

No. 26.

Court of Appeals of Maryland

January 11, 1938

Appeal from Circuit Court, of Baltimore City; George A. Solter Judge.

Suit for injunction by Mary Estelle Dennistone and another against Edward Meade and others. From a decree for plaintiffs defendant Meade appeals.

Affirmed.

BOND C.J., dissenting.

A statute requiring execution, acknowledgment, and recording of deeds is applicable to grants of or covenants for easements in land. Code Pub.Gen.Laws 1924, art. 21, § 1; Code Pub.Laws Supp.1935, art. 21, § 87.

William A. C. Hughes, Jr., of Baltimore, for appellant.

J. S. T. Waters and William L. Marbury, Jr., both of Baltimore (Robert R. Portmess, of Baltimore, on the brief), for appellees.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

SLOAN Judge.

This appeal is from a decree enjoining Edward Meade, a negro, and his family, from using or occupying the house and premises known as No. 2227 Barclay street, in the city of Baltimore, enjoining him 'from procuring, authorizing or permitting any Negro or Negroes, or person or persons, either in whole or in part of Negro or African descent to use or occupy said premises,' and enjoining Frank Berman, Edward Meade's vendor or assignor, from permitting Edward Meade and his family, or any other negroes or persons of African descent, from occupying the premises.

The bill of complaint was filed by Mary Estelle Dennistone, the owner of No. 2221 Barclay street, and Mary J. Becker, the owner and occupant of No. 2234 Barclay street, who had, with fifteen other owners of property in the 2200 block on Barclay street, one of them owning two houses, by agreement dated November 14, 1927, duly acknowledged and recorded, covenanted and agreed, each with the others, for themselves, their personal representatives and assigns, 'that neither the said respective properties nor any of them nor any part of them or any of them shall be at any time occupied or used by any negro or negroes or person or persons either in whole or in part of negro or African descent except only that negro or persons of negro or African descent either in whole or in part may be employed as servants by any of the owners or occupants of said respective properties and as and whilst so employed may reside on the premises occupied by their respective employers nor shall any sale lease desposition or transfer thereof be made or operate otherwise than subject to the aforesaid restrictions as to and upon use and occupancy', that all the covenants, conditions, etc., shall 'run with and bind the land,' and shall be enforceable by any one owning or having any interest in any of the properties affected. The final provision was: 'That a majority of the parties to this agreement may by an instrument in writing duly executed acknowledged and recorded according to law at any time after the execution of this agreement remove the entire property affected by this agreement from the operation and effect of this agreement.'

According to the record: 'The agreement dated on November 14, 1927, was proposed as a result of a meeting of the property owners in an area of twenty-four square blocks bounded on the north and south by Twenty-fifth Street and North Avenue and on the east and west by Barclay and Charles Streets.' This area included six blocks on Barclay street, but we are only concerned in this case with the 2200 block on Barclay street.

No. 2227 Barclay street was owned and the agreement executed by Anne M. Tighe, Francis L. Tighe, Mary V. Tighe, and Anna R. Gugerty, who, by deed of May 27, 1935, conveyed to Florus Barry, who, on the same day conveyed to Mary V. Tighe and Anna R. Gugerty, and they, by deed of November 4, 1935, conveyed to Frank Berman. On October 22, 1936, Berman contracted to sell to Edward Meade, a negro, for $1,100, on account of which he paid $150 in cash, the balance to paid in monthly installments. Meade entered into possession, and, with his family, occupied the house, and on November 24, 1936, the bill for injunction against him and Berman was filed. No. 2238 Barclay street, at the corner of Twenty-Third street, is owned and occupied by negroes and was not included in the agreement. It has a dresmaking shop, with an entrance on Barclay street, run by two colored women who cater exclusively to white trade; the second floor, entered from Twenty-Third street, is occupied by a colored man and his wife. This is the only house from North avenue to Twenty-Fifth street, six blocks and a half, occupied by colored people. Intersecting streets, Twenty-Second and a Half and Twenty-Third Streets and Guilford avenue, one block east, are heavily populated by negroes. Since the signing of the agreement of November 14, 1927, there has been no occupancy of Barclay street by negroes until the present instance. The owners of eleven properties in the 2200 block on Barclay street did not join in the agreement, but they have since then undertaken to bring themselves in, as noted farther on.

Mrs. Becker, one of the plaintiffs, testified that it was her understanding that all of the owners in the block would sign the agreement, and, while she would not have been interested in signing unless all would, she 'thought a majority ruled.' She testified without objection that 'after the corner house was sold there was new families moved and bought property there, and then they got together and signed up those other eleven houses.' Mrs. Dennistone testified: 'When they came to me to sign the agreement they had not gotten all the signatures. I did not know they had not later gotten all and I do not know it now. I knew they were going to all of them to get them. They came to me before they had gone to the rest. I did not know 2238 was signed up until the present time.' She said she would have signed whether all were obtained or not. Plaintiffs offered in evidence an agreement to the same effect as the one in evidence 'signed by a number of property owners' in the 2200 block (number not mentioned) who had not signed the original agreement, executed and recorded December 14, 1936. It had been executed July 21, 1936, but was defectively acknowledged. On objection by the defendants it was not admitted, though Mrs. Becker's statement was in without objection. Laporte v. Pennsylvania-Dixie Cement Corp., 164 Md. 642, 649, 165 A. 195, 168 A. 844, 108 A.L.R. 1474.

The defendants contend that the agreement is a personal covenant and does not run with the land; is contrary to public policy; there is no privity of estate or contract between the covenantor and the covenantee's assignee; is an unreasonable restraint on alienation; the reasons for its execution no longer obtain; is repugnant to the grant; and that its enforcement would be in violation of the Fourteenth Amendment to the Federal Constitution. The converse of each of these contentions is as vigorously maintained by the plaintiffs.

It is not contended that either the state, through its Legislature, or the city of Baltimore, by ordinance, can enforce segregation of the white and colored populations. The question arose in this state in the case of State v. Gurry, 121 Md. 534, 88 A. 546, 47 L.R.A., N.S., 1087, Ann.Cas.1915B, 957, but, while the ordinance was held invalid, the question of segregation was not decided. After the decision in Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918C, 210, Ann.Cas.1918A, 1201, where a segregation ordinance of the city of Louisville, Ky., was held invalid as in violation of the Fourteenth Amendment, any efforts in this direction by any state Legislature or subdivision of a state must fail. Tyler v. Harmon, 158 La. 439, 104 So. 200; Harmon v. Tyler, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831; State v. Darnell, 166 N.C. 300, 81 S.E. 338, 51 L.R.A., N.S., 332; Carey v. Atlanta, 143 Ga. 192, 84 S.E. 456, L.R.A.1915D, 684, Ann.Cas.1916E, 1151. After State v. Gurry, supra, another segregation ordinance was passed by the city of Baltimore, which, following the Warley Case in the Supreme Court, was held invalid in Jackson v. State, 132 Md. 311, 103 A. 910.

It has been held, and frequently, that segregation is allowable on railroads, in schools and in public places, provided equal facilities are afforded, Lee v. State, 164 Md. 550 165 A. 614, and disallowed when they are not, University of Maryland v. Murray, 169 Md. 478, 182 A. 590, 103 A.L.R. 706; Maddox v. Neal, 45 Ark. 121, 55 Am.Rep. 540; Williams v. Board of Education of City of Parsons, 79 Kan. 202, 99 P. 216, 22 L.R.A., N.S., 584; Roberts v. Boston, 5 Cush., Mass., 198; Berea College v. Kentucky, 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81; Id., 123 Ky. 209, 94 S.W. 623, 124 Am.St.Rep. 344, 13 Ann.Cas. 337; Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1140, 41 L.Ed. 256; West Chester & P. Ry. Co. v. Miles, 55 Pa. 209, 93 Am.Dec. 744. In Plessy v. Ferguson, supra, the question was the validity of a statute of Louisiana requiring railways, carrying passengers in that state, to provide separate accommodations for white and colored passengers. In holding that such an act was not in violation of the Fourteenth Amendment, the Supreme Court in an opinion by Mr. Justice Brown, said: 'The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of...