Queensborough Land Co. v. Cazeaux

• Decision Date: 25 January 1915
• Docket Number: 20909
• Citation: 67 So. 641,136 La. 724
• Court: Louisiana Supreme Court
• Parties: QUEENSBOROUGH LAND CO. v. CAZEAUX et al

67 So. 641

136 La. 724

QUEENSBOROUGH LAND CO. v. CAZEAUX et al

No. 20909

Supreme Court of Louisiana

January 25, 1915

Blanchard & Smith, of Shreveport, for plaintiff.

H. C Fisher, of Shreveport, for defendant.

O'NIELL J. dissents from the opinion that the condition runs with the land.

OPINION

PROVOSTY, J.

On submission by the judges of the Court of Appeal, Second Circuit, applying for instructions under article 101 of the Constitution.

The plaintiff company divided into lots, squares, and streets a certain tract of land within the limits of the city of Shreveport with a view to selling same for residential purposes. In order that the locality might be more attractive to white people, and, as a consequence, be sold to better advantage, it inserted in every act by which it sold one or more of the lots a stipulation to the effect that the sale was made 'upon the following conditions, covenants and reservations of rights, which shall continue for twenty-five years from date hereof, to wit,' that the vendee agreed that he, his heirs and assigns, should refrain from selling or leasing the lot or lots to a negro; and that, to insure the observance of this 'covenant,' the company, or any owner or occupant of any of the lots in the same block, should have the right to prevent the breach thereof by an injunction, mandatory or other, and to recover whatever damages might have been suffered from any such breach; and that this 'covenant' should run with the land, and should be kept by all parties occupying or using said lot or lots.

One of the sales thus made was to the defendant Cazeaux, in 1907, for a price recited in the act of sale to be $ 350, but which was in reality $ 150. Cazeaux sold the lot, in 1908, to his codefendant, a negro, and the plaintiff company at once brought this suit.

Plaintiff alleges that said clause not to sell or lease to a negro is a resolutory condition, and that this condition has been accomplished by the sale to a negro, and that plaintiff is in consequence entitled to have the said sale to Cazeaux rescinded; and plaintiff tenders back the $ 150 received as the price of the sale to Cazeaux.

Defendants refuse to accept the tenders, deny that said condition is resolutory in character or that it runs with the land, aver that it creates merely a personal obligation on the part of the vendee, not binding the land, so that the land passed unburdened with it; that as an obligation running with the land it would be null, as creating a tenure of property unknown to our laws, and doubly so as being in restraint of commerce, and therefore against the public policy of the state; and, finally, that it is null as being against the public policy of the national government, in that it discriminates against the negro race.

Parol evidence was offered on the trial to prove that the real price was $ 150, and not $ 350, as recited in the act of sale. This evidence was objected to, on what ground we are not informed, but presumably on the ground that parol evidence is inadmissible for varying or contradicting the terms of a written contract. The objection was overruled.

The case has been certified to this court by the Court of Appeal of the Second Circuit, with the request that this court answer the following questions:

'(1) Does the stipulation in the deed with reference to the transfer of the property to a negro violate the Fourteenth Amendment of the Constitution of the United States for the reason set out in the exceptions filed by defendants?

'(2) Is said provision contrary to the public policy of this state, and therefore null and void, as stated in article 7 of defendant's answer?

'(3) Is the provision referred to a covenant or a condition subsequent a breach of which entitles the grantor to a rescission of the contract?

'(4) Is the plaintiff company, in view of the fact that certain specified remedies for the breach of the provision are stipulated in the deed, injunction and damages, entitled to avail itself of the additional remedy of a suit to annul for violation of a condition subsequent?

'(5) Was parol evidence admissible, as between the parties to the deed, to show that $ 150 was the true consideration of the sale, instead of $ 350, as stated in the deed, in the absence of allegations of fraud, error or ambiguity?'

Before proceeding to answer these questions specifically and analytically, we will observe, in a general way, that it would be unfortunate if our system of land tenure were so hidebound, or if the public policy of the general government or of the state were so narrow, as to render impracticable a scheme such as the one in question in this case, whereby an owner has sought to dispose of his property advantageously to himself and beneficially to the city wherein it lies. And we will observe, further, that if the stipulation against selling to a negro constitutes neither a real right nor a resolutory condition or condition subsequent, following the property into the hands of third persons, its insertion in the act has not provided adequate means of maintaining the integrity of said scheme, for the two remedies of injunction and damages would not be adequate to that end. After a sale had been made, a preventive injunction would be too late, and a mandatory injunction could reach only Cazeaux; not his vendee, who -- on the hypothesis of said stipulation not constituting a real right or a resolutory condition -- would have acquired the property free of same. And the damage resulting from the integrity of the scheme being destroyed might to tenfold greater in amount than Cazeaux or his vendee might have the means of satisfying. And in the same way that Cazeaux might thus destroy said scheme, so might any one of the other vendees of the plaintiff company. Viewing therefore only in their general aspect the defendant's contentions as covered by the questions 1, 2, and 3, we should say that those questions would have to be answered adversely to defendant.

The first, because the general government has not undertaken to interfere with private rights within the states in the interest of the negro race. The fourteenth amendment, in so far as prohibiting discrimination against the negro race, applies only to state legislation, not to the contracts of individuals. Civil Rights Cases, 109 U.S. 62, 3 S.Ct. 18, 27 L.Ed. 835. The matter is one purely of state, or local, interest, with which the general government has no concern, and upon which therefore it can have no policy. Ex parte Plessy, 45 La.Ann. 80, 11 So. 948, 18 L. R. A. 639.

To the second question we answer that, while the public policy of the state opposes the putting of property out of commerce, it at the same time favors the fullest liberty of contract (article 1764, C. C.), and the widest latitude possible in the right to dispose of one's property as one lists (article 491, C. C.), so long as no disposition is sought to be made contrary to good morals, public order, or express law. In Female Orphan Society v. Young Men's Christian Ass'n, 119 La. 287, 44 So. 15, 12 Ann. Cas. 811, a condition of perpetual and total inalienability was held to be void as putting property out of commerce, and therefore against public policy, but between total and perpetual inalienability and partial and temporary inalienability there is a very wide difference. The insertion of a condition of the latter character in contracts and donations is a matter of everyday occurrence, with challenge from no quarter. The question of how far such a condition will be sustained is one dependent very much upon the facts of each particular case. If the condition is founded upon no substantial reason but merely in caprice, and is of a character to tie up property to the detriment of the public interest, it will not be sustained; otherwise, it will. In France, whose public policy in this regard, as, indeed, in the case of every enlightened nation, is the same as ours, it has been held that perpetual and total inalienability might be imposed upon the donation of a tract of land for use as a graveyard. Carpentier et Du Saint Rep. de Droit Francais, Vo. Condition, No. 347. And under Nos. 343-349 of this same work, the general result of the decisions of the courts and of the opinions of the jurists is summed up, as follows:

'A condition frequently imposed is that which restrains the faculty on the part of the donee or legatee to dispose of the thing given or bequeathed, either directly or indirectly, by any act between living persons or by testament. The courts have been called upon frequently to solve difficulties relative to clauses of that kind. It is a matter of public interest, it concerns the public wealth, that the circulation of property should operate freely and without hindrances. Hence all are in accord in looking upon a condition of perpetual and absolute inalienability as being against public order and illegal.

'But if the condition not to alienate is prohibited when it is absolute and perpetual in character, the same is not the case when it is relative and temporary, and when, moreover, it is justified by some serious consideration.'

At common law the rule against perpetuities is much less restrictive than that of France or ours. It allows property to be tied up for the lives in being plus 21 years. 30 Cyc. 1467. It allows perpetuity to be imposed upon a charitable gift or donation for pious use. 6 Cyc. 905. Otherwise, the rule with regard to restraints upon alienations is about the same as ours. 13 Cyc. 687.

We therefore answer this second question in the negative.

Our answer to the third question is that the said stipulation against selling or leasing to a negro is not a mere covenant or personal obligation, but is a real obligation, or, in...