Nw. Civic Ass'n v. Sheldon, 39.

• Decision Date: 17 April 1947
• Docket Number: No. 39.,39.
• Citation: 317 Mich. 416,27 N.W.2d 36
• Parties: NORTHWEST CIVIC ASS'N et al. v. SHELDON et al.
• Court: Michigan Supreme Court

317 Mich. 416

27 N.W.2d 36

NORTHWEST CIVIC ASS'N et al.

v.SHELDON et al.

No. 39.

Supreme Court of Michigan.

April 17, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Arthur A. Webster, Judge.

Suit in equity by the Northwest Civic Association, a corporation, and others against Otis E. Sheldon and others to enjoin named defendant from entering on, using or occupying a certain lot. Decree for plaintiffs, and defendants appeal.

Modified and remanded.

Before the Entire Bench.

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

Younglove & Chockley, of Detroit, for appellees.

Thurgood Marshall, Robert L. Carter and Marian Wynn Perry, all of New York City, and Edward M. Turner, of Detroit (Spottswood W. Robinson, III, of Richmond, Va., of counsel), for National Ass'n for Advancement of Colored People, amicus curiae.

NORTH, Justice.

Defendants have appealed from a decree in the circuit court in chancery of Wayne county whereby the defendant Otis E. Sheldon, a colored man, was restrained and enjoined ‘from entering upon, using or occupying’ lot No. 30 of Security Land Company's Subdivision in the city of Detroit, which property is commonly known as 5325 Seebaldt Avenue; the decree further provided that within 90 days from the date thereof said Otis E. Sheldon should ‘move from said property.’

Four owners and occupants of home properties in this subdivision are joined as plaintiffs with the Northwest Civic Association, a Michigan nonprofit corporation whose members are property owners in the Security Land Company's Subdivision and in neighboring subdivisions and are organized for the purpose, among others, of enforcing real estate restrictions in those subdivisions. The bill of complaint alleges:

‘4. That said Security Land Company's Subdivision was originally planned as a residential district, to be used and occupied exclusively by persons of the white or Caucasian race, and that Security Land Company, the owner, developed said subdivision under a general plan or scheme that it should be and always continue as an exclusively white residential district, and sold said lots on the representation and promise that the subdivision was restricted to those of the Caucasian race.

‘5. That in fulfillment of its said promises and pursuant to its general plan, the Security Land Company provided in the deeds to all lots in said subdivision, excepting a very few omitted by inadvertance, a restriction as follows: ‘Said premises shall not be sold not leased to nor occupied by any person other than one of the Caucasian race.’

‘6. That in pursuance of said general plan, all owners of lots in said subdivision, since its platting in 1913, have recognized and complied with said restriction and plaintiffs allege on information and belief that no person except those of the white or Caucasian race now occupies or has ever occupied any lot in said Security Land Company's Subdivision.’

The testimony taken fairly supports the above quoted allegations in the bill of complaint. However, the following should be noted. The subdivision involved is composed of 338 lots. The restriction as to the use and occupation of the property in the subdivision being reserved exclusively to persons of the white or Caucasian race appears in the chain of title of 310 of the 338 lots. Defendants Sheldon purchased on a land contract and became occupants of lot No. 30 of the subdivision in 1945. The lot purchased by them is one of the few above noted in which the restriction here in issue does not appear in the chain of title. However, the undisputed testimony is that without any exception the use and occupancy of each and all the lots in this subdivision have been uniformly confined to persons of the white or Caucasian race.

The property in suit is occupied by defendants Otis E. Sheldon, his wife, Louise Sheldon, and her father and mother. None of these defendants were witnesses at the hearing of the case; but so far as is disclosed by the testimony Otis E. Sheldon is the only one of defendants who is not of the white or Caucasian race. He at no time appeared or took part in the negotiations for the purchase of lot No. 30 by defendants Sheldon. Instead the wife, Louise Sheldon, and her parents, all of whom appear to be of the Caucasian race, carried on the negotiations and consummated the transactions with the real estate agent who had the sale of the property in charge. He testified that he never saw or talked with defendant Otis E. Sheldon, but that Mrs. Sheldon and her parents told him that: ‘He (Otis E. Sheldon) was always very busy on an important war job with an ordnance factory, and could not take time off.’ He further gave the following testimony:

‘Q. Did you discuss with Mrs. Sheldon and with the Wests these restrictions? A. Yes.

‘Q. And what did you tell them regarding the restrictions? A. Well, that is one of our sales points. When we take somebody in that neighborhood to show them property, we always point out that it is a highly restricted neighborhood for the Caucasian race only and that is what I told Mrs. Sheldon and Mr. West when I took them out.

‘Q. That was before they purchased the property? A. That is right. To my knowledge there has never been any other Negro families in the Security Land Co. Sub. It has always been an entirely white subdivision.’

Shortly after the purchase and occupancy of this property by the Sheldons and Wests other property owners in the subdivision discovered that Otis E. Sheldon was a colored man, and this suit was promptly commenced.

The record is contrary to appellants' contention (1) that plaintiffs did not establish as to this subdivision the doctrine of reciprocal negative easement had been applied or enforced by which those who were not of the white or Caucasian race were excluded, and (2) that there was no competent testimony in support of the trial court's finding that Otis E. Sheldon was not of the Caucasian race. Those facts were established. In the main appellants' contention is that the decree in the circuit court granting the relief sought by plaintiffs is contrary to public policy and is in violation of article 2, § 16 of the Michigan Constitution and the 14th Amendment to the United States Constitution. While these two constitutional provisions differ somewhat in diction, as considered in connection with the instant suit, they are to the same effect.¹

Defendants' contention in the above respects is contrary to the former decisions of this Court and also to decisions in the United States Supreme Court. Parmalee v. Morris, 218 Mich. 625, 188 N.W. 330, 38 A.L.R. 1180, in substance held that a restriction applicable to all lots in a subdivision whereby it was provided ‘Said lot shall not be occupied by a colored person’ is not void as contravening the provisions of the 13th or 14th amendments to the United States Constitution, and further that such a provision was not contrary to public policy. The decision in the Parmalee case was cited and followed in Schulte v. Starks, 238 Mich. 102, 213 N.W. 102, which held (syllabus) ‘Restraint upon occupancy of lots of a subdivision by colored persons is valid and enforceable.’ The phase of the instant case now under consideration is adequately covered by our recent decision in Sipes v. McGhee, 316 Mich. 614, 25 N.W.2d 638, 643, and our holding therein was adverse to the contention of appellants in the instant case. In the McGhee case we held a like restriction valid and said:

‘It is also the public policy of this State, as expressed in decisions of this court too numerous to...