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BOGAN v. SAUNDERS

May 7, 1947

BOGAN et al.
v.
SAUNDERS et al.



The opinion of the court was delivered by: KEECH

This is an action (1) to enjoin pendente lite and permanently the defendants from selling, renting, leasing, transferring, or conveying Lot 25, Square 3123, improved by premises 83 W Street, N.W., in the District of Columbia, to negroes or persons of the negro race or blood; (2) to enjoin pendente lite and permanently the defendants William L. Saunders and Josephine Saunders, their agents, servants, employees, and all persons in active concern and participation with said defendants who are negroes or persons of the negro race or blood, from renting, leasing, or using, or in any manner occupying said premises, and to direct them to vacate and remove therefrom all household goods and other property to them belonging; and (3) to declare null and void the deed dated October 2, 1946, and recorded October 17, 1946, from the defendant Urciolo to the defendants Saunders, and to declare said deed to be canceled and title to said property in Florence E. Urciolo, subject to the provisions of the restrictive agreement dated March 23, 1946.

Prior to the hearing on this case Raphael G. Urciolo, husband of Florence E. Urciolo, sought leave to intervene on the basis that the said Florence E. Urciolo was 'merely a straw', that proper representation of Raphael G. Urciolo could not be made by the said Florence E. Urciolo, and that said Raphael G. Urciolo might be bound by judgment in this action. He was permitted to intervene and participated in the proceeding.

 This cause grows out of a restrictive agreement entered into between all of the owners of property located on W Street, N.W., facing north and south, between North Capitol and First Streets, save the owners of premises 7 and 13 W Street, N.W. The agreement bears date of March 23, 1946, and was recorded on July 29, 1946.

 Title to premises 83 W Street was transferred from Blanche Vance, one of the signers of the restrictive agreement to the defendant Florence E. Urciolo by deed dated September 30, 1946, and recorded October 17, 1946. The said premises were then conveyed by the defendant Florence E.Urciolo to the defendants Saunders by deed dated October 2, 1946, and also recorded on October 17, 1946. Both of the conveyances were subsequent to the recording of the restrictive agreement.

 The defendant-intervener, Raphael G. Urciolo, is a real estate broker and has been a party to litigations concerning similar covenants and restrictive agreements in this area. The record discloses that -- apart from his general knowledge of the area, which he characterized as 'peculiar' -- the defendant-intervener Urciolo testified that he knew of the restrictive agreement covering 83 W Street at the time of settlement, that he advised the defendants Saunders of the restrictive agreement, and that they bought the property in question with knowledge of the restriction and with the understanding that, if the restrictive agreement be held valid, he would make them whole by refunding the money paid by them, plus six percent interest. Thus, all the defendants had actual as well as constructive notice of the restrictive agreement.

 In determination of this cause, the Court is required by pronouncements of the United States Supreme Court and the United States Court of Appeals for the District of Columbia to find, as a matter of law, that restrictive agreements and covenants such as here involved are valid. Corrigan v. Buckley, 55 App.D.C. 30, 299 F. 899; Id., 271 U.S. 323, 46 S. Ct. 521, 70 L. Ed. 969; Mays v. Burgess, 79 U.S.App.D.C. 343, 147 F.2d 869, certiorari denied, 325 U.S. 868, 65 S. Ct. 1406, 89 L. Ed. 1987. This is, of course, subject to the requirement that the necessary formalities in execution of the agreement have been complied with.

 No serious question as to the validity of the restrictive agreement was raised by the defendants because of the failure of the owners of premises 7 and 13 W Street to sign. The record shows that those premises were at the time of the signing of the agreement and are at present owned and occupied by white persons. It is not necessary that one hundred percent of the owners of property sign in order to give such an instrument validity, similar restrictive agreements having been held valid where there was mixed occupancy in the very block subject to the agreement.

 Defendants challenge the validity of the agreement because of the method adopted in procuring the signatures and acknowledgments to the instrument. The Court assumes that all the signatures were not procured on the same date, as is the case in most documents of this type. Furthermore, the record discloses that acknowledgments of the signatures were not taken on the date of signature in all instances, nor were all acknowledgments taken on the same day.

 With reference to this challenge, plaintiffs introduced Col. Joseph A. Bayer, a notary public in and for the District of Columbia, who resides at 22 Bryant Street, N.E., in the immediate vicinity of the property here involved. Counsel for defendants conceded Colonel Bayer's qualifications as a notary.

 It was conceded that the jurat conforms to the statute save as to the omission of the word 'well' in the phrase 'personally well known to me,' but this is not a material omission. 'It is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances, or the proof of them, to be defeated by technical or unsubstantial objections.' Carpenter v. Dexter, 8 Wall. 513, 75 U.S. 513, 526, 19 L. Ed. 426; Black v. Aman, 6 Mackey 131, 17 D.C. 131.

 The testimony of the notary showed not only that he has a keen understanding of his duties as a notary, but that he is familiar with the neighborhood covered by the agreement and many of its residents, and that in all cases where the signer was not personally well known to him he was most meticulous in having such signer properly introduced to him before taking the acknowledgment, save when he went to the home and the residents thereof signed and acknowledged in his presence.

 Under all the facts, the Court finds that in execution of the agreement there has been substantial compliance with the statute, and no detriment or fraud the absence of any testimony on behalf of defendants challenging the validity of the signatures or acknowledgments. The Court therefore finds that the restrictive agreement was properly executed and duly recorded, and that its terms, including the duration of twenty-one years, are valid under existing law, as enunciated by the Supreme Court and our Court of Appeals.

 The restrictive agreement being valid and duly recorded, anyone subsequently buying any of the properties subject thereto bought with notice of the agreement and was bound thereby as if he had been a party to it.

 The only other question for determination is whether or not changes in conditions have occurred since execution of the restrictive agreement which would make enforcement unreasonable or inequitable under the doctrine followed by the Court of Appeals in Hundley v. Gorewitz, 77 U.S.App.D.C. 48, 132 F.2d 23. Counsel for the principal defendants, William L. Saunders and Josephine Saunders, Franklin stated that he was not relying on this point. It was not urged very strongly, if at all, by the defendant-intervener Urciolo, doubtless for the reason that the ...


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