Torrey v. Wolfes

• Decision Date: 01 June 1925
• Docket Number: No. 4299.,4299.
• Citation: 56 App. DC 4,6 F.2d 702
• Parties: TORREY et al. v. WOLFES et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 4, 6 F.2d 702 (1925)

TORREY et al. v. WOLFES et al.

No. 4299.

Court of Appeals of District of Columbia.

Submitted May 4, 1925.

Decided June 1, 1925.

Webster Ballinger, of Washington, D. C., for appellants.

R. J. Whiteford, of Washington, D. C., for appellees.

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

VAN ORSDEL, Associate Justice.

Appellees, plaintiffs below, are owners of residences fronting on Randolph Place, Northwest, in the city of Washington. The houses were erected and sold by Middaugh and Shannon, who had acquired title to this property, as well as a large adjoining area. In other words, plaintiffs' property constitutes a portion of an improved addition known as "Middaugh and Shannon Development." Appellant Torrey, one of the defendants, owned a house, the property here in question, fronting on Randolph Place, which was erected and sold by Middaugh and Shannon. All the deeds by Middaugh and Shannon, to the property on Randolph Place, contained the following restriction: "Subject to the covenant that said lots shall never be rented, leased, sold, transferred, or conveyed unto any negro or colored person under a penalty of two thousand dollars, which shall be a lien against said lot."

Defendant Torrey sold the property in question to defendant Ivy, a negro, and executed a deed therefor, which was recorded prior to the bringing of this suit. Plaintiffs pray for a temporary injunction, and on final hearing a perpetual injunction, restraining the defendant from conveying, renting, leasing, or transferring the property in question to any negro or colored person, and for such other and further relief as the nature of the case shall require.

From a decree of the court, issuing an injunction pendente lite, this appeal was taken.

The case turns wholly upon the validity of the covenant in the deed, and the right of the plaintiffs to have it enforced in a court of equity. It is apparent that each of the parties to this action, plaintiffs as well as the defendant Torrey, when they purchased their homes, subjected themselves to the restrictive covenant, not only for their own protection, but upon the assurance that a similar restriction would rest upon all other property embraced in the Middaugh and Shannon Development on Randolph Place. As this court, in Chevy Chase Land Co. v. Poole, 48 App. D. C. 400, where the erection of a store building was enjoined because in violation of representations made by a development company that the land within certain limits would be used exclusively for homes, said: "The purchaser, having submitted to a burden upon his own land with the understanding that a similar burden is to be placed upon the remaining land of the grantor for the common benefit of all, will be relieved from an attempt by the grantor or third party with notice to depart from the general scheme." A similar restriction was upheld by this court in McNeil v. Gary, 40 App. D. C. 397, 46 L. R. A. (N. S.) 1113.

Nor is the contention of appellant that the covenant in question cannot be enforced in equity sound. "Equity enforces contracts and covenants in regard to property entered into between prior grantors and grantees, in regard to the use of the property,...