Russell v. Wallace

• Decision Date: 04 February 1929
• Docket Number: No. 4745.,4745.
• Citation: 30 F.2d 981,58 App. DC 357
• Parties: RUSSELL et al. v. WALLACE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

58 App. DC 357, 30 F.2d 981 (1929)

RUSSELL et al. v. WALLACE et al.

No. 4745.

Court of Appeals of the District of Columbia.

Submitted January 8, 1929.

Decided February 4, 1929.

Charles A. Douglas, Jo V. Morgan, and George E. C. Hayes, all of Washington, D. C., and Louis Marshall, of New York City, for appellants.

Jesse C. Adkins, Frank F. Nesbit, and Lucien H. Mercier, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

Appellees, plaintiffs below, filed a bill in equity in the Supreme Court of the District of Columbia to restrain the defendants Russell from conveying a certain piece of real estate, known as 77 Randolph place, in the city of Washington, to the defendants Newton and Peterson, who are alleged to be of the Negro race; and to decree a conveyance executed by the defendants Russell to the defendants Newton and Peterson null and void, and that defendants be required to vacate the premises.

From a decree granting the relief prayed this appeal was taken.

The action is based upon an agreement entered into between the property owners on Randolph place, providing that for themselves, their respective heirs, assigns, and successors in interest, no part of said land "shall be, during the life of this indenture, used or occupied by, or sold, conveyed, leased, rented, or given to negroes or any person or persons of the negro blood or mixed negro blood, or to any other person or persons of any race other than the white or Caucasian race."

The validity of a contract of this sort has been upheld by this court in Corrigan v. Buckley, 55 App. D. C. 30, 299 F. 899, and in Torrey v. Wolfes, 56 App. D. C. 4, 6 F.(2d) 702. We find nothing in the present agreement to distinguish it from the contracts under consideration in those cases; hence there is no occasion for further consideration of this ground of appeal, as we will adhere to our former decisions.

The agreement was duly recorded before the conveyance from Russell to Newton and Peterson was made; hence Newton and Peterson took with notice of the existence of this restriction. It is contended, however, by the appellants Russell that prior to the date of recordation they released themselves from the obligation of the contract by means of a letter written on May 18, 1926, the material part of which is as follows: "We find it absolutely necessary to withdraw our signatures from the covenant you persuaded us to sign last fall. We feel that we have for years done all that we possibly could to assist you in maintaining a white neighborhood. We signed with the understanding that the covenant was null and void unless everyone in the block signed. We know that everyone has not signed. Moreover, we signed after being assured that some of the residents concerned had signed, who have since advertised and sold. Every effort on our part has been put forth to avoid this, we have wasted money, time and strength, not to mention hours and hours of anxiety, and now we cannot meet our obligations. We will appreciate any suggestions or help that you can give us." This letter was written about two years prior to the date on which the covenant was recorded, and was addressed to the Citizens' Association of Bloomingdale.

The agreement provided, among other things: "That this indenture shall not become effective or binding upon any of the parties hereto until all the signatures hereto affixed are duly acknowledged before a Notary Public or other officer empowered to administer oaths in such cases, and further until this indenture is recorded in the office of the Recorder of Deeds of the District of Columbia." It is urged by the appellants that under this provision of the contract the letter operated as a withdrawal from the agreement, inasmuch as it was written before the contract had been recorded.

It will be observed, however, that this provision of the covenant defines merely the time when it shall become effective, and furnishes no method by which those who have attached their signatures may individually withdraw. Such withdrawal could only become effective by operation of law, through the failure to complete and record the instrument within a reasonable time. The covenant provides within its terms a method to be pursued in case revocation is desired or thought necessary for the best interests of all parties concerned. Under those circumstances it provides: "The same may be revoked and annulled, and the land affected by it freed from the operation thereof as completely as though it never had been executed, upon the recording in the office of said Recorder of Deeds of an agreement to that effect signed and duly...