Janss Investment Co. v. Walden

HOUSER, J., pro tem. This is an appeal from a decree in a suit to quiet title. The facts are not in dispute. It appears that the plaintiff, Janss Investment Company, is a subdivider of land into town lots; that from one of its subdivisions it sold a lot to defendant Walden under an installment contract which contained as one of its conditions a paragraph of which the following is a copy: “No part of said real property shall ever be leased, rented, sold or conveyed to any person who is not of the white or Caucasian race, nor be used ór occupied by any person who is not of the white or the Caucasian race whether grantee hereunder or any other person.” The contract also provided: *754 “This contract is not transferable without the written consent of the party of the first part, and then only upon payment of the usual fee of one dollar. ...” *773 which he has parted under it. It makes no difference that the principal was not in fact injured, or that the agent intended no wrong, or that the other party acted in good faith; the double agency is a fraud upon the principal and he is not bound.’ (Italics added.) The rule is supported by cases cited by the author, and cases cited by appellant also approve the rule that such a contract is voidable at the option of either principal. (Becker v. Spalinger, 174 Wis. 443 [183 N. W. 173]; Ferguson v. Gooch, 94 Va. 1 [40 L. R. A. 234, 26 S. E. 397]; Guthrie v. Huntington Chair Co., 71 W. Va. 383 [76 S. E. 795] ; Evans v. Brown, 33 Okl. 323 [125 Pac. 469]; City of Findlay v. Pertz, 66 Fed. 427 [29 L. R. A. 188, 13 C. C. A. 559] ; Black v. Miller, 71 Ill. App. 342; People’s Ins. Co. v. Paddon, 8 Ill. App. 447; Fish v. Leser, 69 Ill. 394; McElroy v. Maxwell, 101 Mo. 294 [14 S. W. 1]; Greenwood v. Spring, 54 Barb. (N. Y.) 375; Marsh v. Buchan, 46 N. J. Eq. 595 [22 Atl. 128]; Henninger v. Heald, 52 N. J. Eq. 431 [29 Atl. 190]; Arthur v. Georgia Cotton Co., 22 Ga. App. 431 [96 S. E. 232] ; Vinson et al. v. Pugh, 173 N. C. 189 [91 S. E. 838]; Truslow v. Bridge & Terminal Co., 61 W. Va. 628 [57 S. E. 51].) *754 The contract was entered into on May 3, 1922. On the following day Walden, who was a white man, attempted by a quitclaim deed to convey all his right, title, and interest in the property to defendants Walling, who are negroes. On September 2, 1922, defendant Walden, after having decided that the mode of conveyance used by him was insufficient for his purpose, made an assignment in writing of all his interest to defendant Betty Walling, which attempted assignment, it is conceded by the appellant, failed for the reason that the plaintiff refused to give, and did not give, its consent, in writing thereto; nor was the sum of one dollar paid to the plaintiff for making such assignment. However, without reference to the state of the title to the property as between defendant Walden and the defendants Walling, or either of them, no question is raised as to the fact that the Wallings were let into the possession of the lot in question and that at the time the suit was commenced they were in the use and occupation thereof. At the conclusion of the trial in the lower court judgment was rendered in favor of the plaintiff and defendant Walden has appealed therefrom. The sole question presented for determination by this court is as to the validity of that part of the condition of the contract between the parties thereto that “No part of said real property shall ever ... be used or occupied by any person who is not of the white or the Caucasian race. ...” If the question were a new one to this court it would demand careful investigation of the legal principles and the authorities presented by appellant in support of his contention touching the constitutionality of the condition set forth in the contract, to which reference has been had. In view, • however, of "the fact that the identical question has been raised recently in -a preceding case and passed upon by this tribunal adversely to appellant’s contention in the case at bar, it becomes unnecessary and inadvisable to devote much time or thought to a consideration of the legal points suggested by appellant. We refer to the case of Los Angeles Investment Co. v. Gary, 181 Cal. 680 [9 A. L. R. 115, 186 Pac. 596], The facts therein, as stated in the opinion of *755 the court, were that the plaintiff was the owner of a tract of land which had been subdivided -into town lots; that it sold one of such lots to a man named Renaker, who in turn sold it to defendant Gary, who was a negro, and who, with his wife, who was a colored woman, thereafter went into the use and occupation of the property. The deed by which the property was conveyed by the plaintiff therein to Renaker contained a condition “ . . . that the ^aid property shall not be sold, leased or rented to any persons other than of the Caucasian race, nor shall any person or persons other than of Caucasian race be permitted to occupy said lot or lots.” (The deed there, as the contract here, also contained the usual forfeiture and reversionary clauses for breach of any of its conditions. It will thus be seen that the facts in the two cases are practically identical one with the other.) The matter seems to Have been thoroughly considered both by the court sitting in department and, later, on petition for rehearing, by the court sitting in bank. The conclusion reached, as fairly stated in the syllabus, was that “The provision in a deed that no person or persons other than of the Caucasian race shall be permitted to occupy the property, is not a' restraint upon alienation, but upon the use of the property, and is valid.” This court feels itself bound by the ruling reached in that case. The date of the decision was December 11, 1919, since which time it has been considered as settled law in this state and accordingly followed by subdividers of property and by purchasers of town lots and the owners of real property in general. It cannot now be disturbed. The judgment is affirmed. Myers, C. J., Waste, J., Lawlor, J., Seawell, J., Lennon, J., and Knight, J., pro tern., concurred. Rehearing denied.