Scholtes v. McColgan

• Decision Date: 02 March 1945
• Docket Number: 23.
• Citation: 41 A.2d 479,184 Md. 480
• Parties: SCHOLTES v. McCOLGAN.
• Court: Maryland Court of Appeals

41 A.2d 479

184 Md. 480

SCHOLTES v. McCOLGAN.

No. 23.

Court of Appeals of Maryland

March 2, 1945

Appeal from the Circuit Court, Baltimore County; J. Howard Murray Judge.

Suit by Michael B. Scholtes against Charles G. McColgan to restrain defendant from selling land or any part thereof to any person of the Negro race. From an order dismissing the bill, the plaintiff appeals.

Affirmed. James C. Burch, of Baltimore, and H. Richard Smalkin, of Towson (Smalkin & Hessian, of Towson, on the brief), for appellant.

Richard H. Stevenson, of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS GRASON, MELVIN, HENDERSON, and MARKELL, JJ.

MARBURY Chief Judge.

The appellant is the owner of two lots on the Falls Road in Baltimore County, which were purchased by him in March, 1940 and in January, 1942, both from the appellee. In each of his deeds is found the following clause: 'The property above described or any building thereon shall at no time be occupied by any negro or any person of negro extraction; this restriction however, is not intended to include the occupancy by any negro domestic servant while employed in or about the premises by the owner or occupant of the property.'

Appellant's lots were part of a tract of about 74 acres, conveyed without restrictions to the appellee in 1903. The appellee has sold only five lots out of this tract in the 40 odd years since he purchased it, two of these being those sold to the appellant. One lot was sold to the Board of Education of Baltimore County, was conveyed without restrictions, and now is used as part of a white school yard. Another lot was sold September 18, 1939, to Warren B. Sayman. In this transaction there was first an option given, subject to certain restrictions, one of which was also placed in the deed. This restriction reads 'The premises shall not be leased, sold, demised or conveyed to or owned by a negro; or be occupied or resided on by persons of negro descent, except in a menial capacity.' At the end of the list of restrictions attached to the option, it is stated: 'The restrictions above mentioned are not to bind or apply to any other property of the vendor, except there' (that?) 'herein described.' The last tract sold, other than the final one sold to appellant, was conveyed in February, 1941, to Edward E. Stafford and wife. The Stafford deed contains the same restriction as that in the deeds of the appellant.

The bill of complaint alleges that at the time appellant purchased his lots, he was advised by the appellee that no part of the 74 acre tract could ever be sold to, or occupied by, persons of the negro race; that he has erected a valuable dwelling house and a shop on the lots purchased by him, which he now occupies; that he is a member of the white race, and relied upon the assertion of the appellee, especially in view of the fact that a negro settlement was situated on the same side of the Falls Road as the lots he purchased. Appellant further alleges that the appellee wrote to appellant's agent on May 3, 1944, advising him that he had sold a stone dwelling, situated at or near the northeast corner of Falls Road and Sorrento Avenue, and on a part of the 74 acre tract, to persons of the negro race. Appellant asks that appellee be restrained from selling this dwelling to persons of the negro race, be restrained from permitting and allowing any person of the negro race to occupy the said building, that he be restrained from conveying to any person of the negro race any part or parcel of the 74 acre tract, and that he be restrained from permitting any person of the negro race to occupy any part of the said tract, and for further relief. Appellee, in his answer, denies the allegations that he made any statements that no part of the 74 acre tract would ever be sold to or occupied by persons of the negro race. He further states that the negro settlement mentioned in the bill is located approximately 50 feet from the boundary of the 74 acre tract. He also states that the covenant against negro occupancy, contained in the Stafford deed, has been waived by the Staffords and the appellee by mutual consent in writing. Testimony was taken, and at the conclusion of the case, the Chancellor dismissed the bill of complaint. From the order dismissing the bill, this appeal comes here.

The letter of May 3, 1944, written by the appellee to appellant's agent, Mr. Fenton, who was trying to buy a lot from appellee for appellant, was offered in evidence by appellant for the purpose of showing appellee's intention. The pertinent parts of this letter are as follows: 'Over 40 years ago I purchased 75 acres of land on both sides of the Falls Road just north of the colored settlement which stopped the extension of the colored development. During all these years, since that time I made an effort, but in vain, to sell to white people only. Finding that it was impossible, I offered this property on the market for manufacturing purposes and succeeded through brokers in selling to Scholtes and The Valley Landscape Company. Then came along Mr. Arthur F. L. Briscoe, who no doubt you know, who is related to the Lee and Tyson families. I sold him eight (8) acres for a night club. The reason for buying the large acreage was for parking space facilities, so the Falls Road would not be congested, he proposed to put up a building to accomodate 3,000 people with a dance floor large enough for 1,000 couples. No whiskey was to be sold but beer, light wines and sandwiches. People up the road including Johnson who is more than two (2) miles away, with the Valley Inn adjoining his property which has dog racing in the summer and sells whiskey and all kinds of liquors--also Mr. Allen W. Morton 2 1/2 miles away by road to his entrance and 65 other residents from Ruxton and surrounding country succeeded up to the present in keeping Mr. Briscoe from obtaining a licenses, although the property was zoned for business.

'Feeling that the residents have not appreciated my efforts during the past 40 years, I then determined to sell it to negroes or anybody and have succeeded in selling the stone building facing the school compuss and several lots to colored people--so Kelly and his dogs will have to find another location.

'I do not believe I will have any trouble in selling the balance of the property to negroes, where they can enjoy boating, fishing and skating on Lake Roland with the other 65 residents.'

Appellant testified that when he bought the first lot in 1940, he had a conversation with appellee and the latter told him at that time 'He had restricted this property and didn't want the darkies to come in further than they had come at the present time, and that was his intention.' On the strength of that, and the clause in the deed, appellant claimed he erected his home because he thought he was protected. Later, on re-cross examination, being asked to clarify this conversation, he said that the appellee said he didn't want any colored people on his property, and was inserting a clause in appellant's deed which would keep him from ever selling to any colored people, or renting to them. Mr. Sayman, one of the other lot owners, said he had a conversation with the appellee about 18 months before he actually purchased his property, at the time he rented it with an option. He said the appellee told him that he didn't want any negroes on the place, and that there would be a restriction in reference to that. He said that the appellee intended to keep it all as a white subdivision and restricted the negroes to the territory where they were at the time. He was asked on cross examination to explain the provision in the restrictions that they were not to bind or apply to any other property of the vendor except that described. He gave his interpretation of that provision as meaning some other tract than the 74 acre tract, but it is probable from the way he gave his testimony that he had not read it.

A Mrs. Kelly, who is engaged with her husband in the dog kennel business, and formerly occupied the stone house, said that the appellee had rented this house to her more cheaply than he could have rented it for a store; that he said he could have rented it to colored people for a store, but that he didn't want to; that he had paid taxes on the property and kept it idle, and also he had kept a little bungalow idle for a number of years because he wouldn't rent to colored people.

The appellee denied that he had ever told the appellant that he never intended colored people to occupy any portion of his 74 acre tract. As to the Sayman sale, he testified that he had told Sayman at the time the latter got an option, that he was not tying up other property except Sayman's, but that he did tell Sayman that he never intended colored people to occupy any portion of the 74 acre tract. He said that adjoining the 74 acre tract there were about 22 colored families, all but two located on the west side of Falls Road. After the night club sale did not go through as set out in the letter, the appellee said he then decided to sell to colored people; that since 1903 he has not been able to sell any lots for exclusive white residences on the 74 acre tract. The Sayman, Scholtes and Stafford properties are business. A Mr. Ferguson, who had been in the real estate business for a great many years, testified that he was familiar with the 74 acre tract; that it is underlined with stone and has very steep gulleys and holes, and is decidedly not suitable for residential development.

Other testimony was taken, but none of it is particularly pertinent to the issues which the appellant raises. These are: (1) That it was the intention of the appellee to impose a restriction against the sale to and occupancy by negroes...