[The case appealed to me as an exam question because it raised two issues in the law of servitudes (creation by implication from a general plan; changed circumstances) and could also serve as an evaluation of an Institutional Learning Objective Georgetown Law adopted last year: “Ability to think critically about the law's claim to neutrality and its differential effects on subordinated groups, including those identified by race, gender, indigeneity, and class.” The students had already read a note, drawing heavily upon Mark Tushnet’s Making Civil Rights Law, on Corrigan v. Buckley and how civil rights lawyers attacked the state action requirement in Shelley v. Kraemer, and Shelley itself. Another note discussed the litigation of the racial identity of the parties in Sipes v. McGhee and Hurd v. Hodge. DRE]
In 1910, two developers, Harry Willson and Harry Wardman, built a block of six rowhouses on the west side of Thirteenth Street, N.W., a north-south artery in the District of Columbia. They are numbered 2524, 2526, 2528, 2530, 2532, and 2534 and are the white, red-tile-roofed rowhouses pictured at right. The six houses appeared in a plat captioned "Harry B. Willson's subdivision of lots in Block numbered Thirty (30) Columbia Heights" that was duly recorded in office of the Surveyor of the District of Columbia.
The developers sold all six houses within a two-month period in 1910. The deeds of five of them included the following covenant: "said lot shall never be rented, leased, sold, transferred or conveyed unto any Negro or colored person." For unknown reasons, the deed for the first house sold, No. 2526, did not include the covenant. Even so, no African Americans bought any of the six houses before 1940.
In 1927, Rebecca Gorewitz bought No. 2528 for $13,500 after her realtor told her, erroneously, that all six rowhouses were restricted. In 1928, a group of White property owners prepared a new racially restrictive covenant to bind homeowners on the both sides of Thirteenth Street in the block containing the Willson rowhouses. This new covenant provided that it would not become binding until all those homeowners signed it. Some never did.
At some point in the 1930s, the Home Owners' Loan Corporation (HOLC) took a mortgage on No. 2534. After the mortgagor defaulted, HOLC took title to the rowhouse and offered it for sale for $9,500. Although an African American clergyman offered to buy it for $10,000, HOLC refused, because of the 1910 racially restrictive covenant. Instead, in June 1940, HOLC sold the house to a White couple, Paul and Marian Bogikes, for $8,000.
In June 1940, too, No. 2526 was sold to a mixed-race person named Preston, who could pass for White. Preston immediately resold the house to Ernest Leroy Fleet, an African American, who put the family of his nephew, Lauren Fleet, who also was Black, in possession. In April 1941, Gorewitz and the Bogikes sued to oust the Fleets under the 1928 covenant, but their suit was dismissed in July 1941, because not every homeowner had signed that covenant. The Fleets remained in No. 2526.
In
December 1940, a White realtor named Nelson Holmes, who had a practice
of "flipping" properties, acquired title to No. 2530 from HOLC. With
help from another realtor, John Lankford, Holmes sold that rowhouse to
two Black schoolteachers, Frederick and Mary Hundley in January 1941.
Lankford, perhaps thinking of the failed 1928 covenant, assured the
Hundleys that No. 2530 was unrestricted. By mid-March 1941, the
Hundleys had spent $2,300 to improve the rowhouse, largely with funds
from a loan from the Federal Housing Administration.
In April
1941, Gorewitz, whose rowhouse (No. 2528) shared a party wall on one
side with the Fleets' rowhouse (No. 2526) and on the other with the
Hundleys' rowhouse (No. 2530), together with the Bogikeses (No. 2534)
sued in the U.S. District Court for the District of Columbia to enjoin
the Hundleys from continuing to occupy No. 2530. Charles Hamilton
Houston represented the Black schoolteachers.
At a bench trial
before Judge Matthew McGuire in October 1941, Gorewitz testified that
she would not have bought No. 2528 had she known that No. 2526 was
unrestricted. She also testified that she did not plan to move, even
though she acknowledged that the Fleets intended to remain. When
Houston asked why she objected to the Hundleys, she said their presence
decreased the value of her home. Houston then asked, "If you were shown
that the moving in of Negroes would not depreciate the value of your
property, would that remove one of your objections to Negroes?"
Gorewitz replied, "No, indeed. I would still like to have my block
white." She testified that she would continue to consider her
neighborhood white, notwithstanding the Fleets' presence.
Much
testimony and a map, stipulated to by both sides, showed the race of
owners of residential property near the six Willson rowhouses. Although
No. 2526 and 2530 were the only houses on their block occupied African
Americans at the time of trial, many lived on Thirteenth Street starting
a block to the south, and others lived on unrestricted side streets.
Houston proffered evidence to show that housing along Thirteenth Street
was bound to be occupied by African American, because a government
building program that took Black residences was worsening an already
severe housing shortage. "The Negro population is coming right straight
up 13th Street, covenant or no covenant," Houston declared. Judge
McGuire excluded the evidence as irrelevant.
After trial, but
before judgment was announced, an African American named Gertrude Savoy
bought 2523 Thirteenth Street, NW, almost directly across from the
Willson rowhouses. Houston tried to add this fact to the record, but
Judge McGuire denied his motion. On December 1, 1941, he entered
judgment canceling the Hundleys' deed and ordering the couple to vacate
by April 1, 1942. "While it may be true that the general area over a
period of time has become what might be termed a mixed neighborhood of
whites and Negroes," Judge McGuire wrote, "there has not been such a
change in the immediate neighborhood as evidenced by the plat submitted
by stipulation of the parties as to warrant equity to take cognizance of
the fact that the enforcement would be oppressive and that it would be
inequitable to give it effect."
On appeal to the U.S. Court of
Appeals for the District of Columbia, Chief Judge D. Lawrence Groner, a
Virginian, writing for a three-judge panel (including the Kentuckian
Fred Vinson), unanimously reversed in December 1942. Chief Judge
Groner's review of the facts included Savoy's purchase of No. 2523 and
suggested that Black ownership of homes around the Willson rowhouses was
greater than one might think from Judge McGuire's finding of fact.
Chief Judge Groner wrote:
Enjoining the Hundleys would "depreciate rather than enhance the value of the property concerned," Chief Judge Groner concluded, "without accomplishing the purpose which originally impelled its making."
After the decision, the Hundleys, who had temporarily rented No. 2530 to a White tenant, moved backed into their home.
