The broad ax., 1926-06-05
Curtis Segregation Case

Curtis Segregation Case
Stating that upon the pleadings,"
IT had no jurisdiction in the so-called
Curtis case, the u. S Supreme Court
dismissed the appeal from decisions Of
the District of Columbia courts to the
effect that white property-holders can,
by valid contract, exclude Negroes
from purchasing property in areas re-
stricted to the use Of the covenantors,
their heirs and assignees. The court
added that neither the Fifth, Four
teenth, nor the Fifteenth amendments
were involved in the case, and that
the appellants had not been deprived Of
any of their constitutional guarantees
either before or during the trial of the
cause. This blow is disheartening to
the race, because precedents of our
highest tribunal are reasonably per-
manent in the progression of Ameri-
can Jurisprudence. Yet, there is cause
for hope, we think, in the following
brief analysis of law in the Curtis
case, which we submit with deep re-
gard for the poise, sincerity and I'M
firing efforts of appellants counsel in
the case.
There was never more than the
merest veneer of constitutional law in
volved in the Curtis case. Rather, the
problem turned upon that absorbing
doctrine of the law of real property
prescribing and describing the type and
content of covenants, which, when Gre
ated within land grants by devise or
demise, are such covenants as run
with the land, and in so running be-
come binding upon the covenantors
and their heirs and assignees. The
covenant in the Curtis case was clearly
binding one, and one as to which
the covenantors were within their
rights to make. The question then
arose as to what right might arise in
persons not parties to the covenant
which, in the face of the law Of real
property, would be entitled to para
mount consideration. Such right or
at least the presumption of such a
right arose whenever a prospective
purchaser came forward, in whose fa-
vor one or anyone of the covenantors
might desire to disavow the covenant
with his fellow covenantors in order to
sell to third parties, whose right to
purchase was certainly, in the begin
ming, on parity with the right Of the
covenantors to contract among them
selves, and in so doing create void
able contract At this point, imma-
terial to constitutional law, but as a
primary question to the scope of the
law of real property, there Immediately
arose the query as to whether or not
the covenant thus made was such a
covenant as would run with the land
to the restriction Of the personal legal
rights of covenantors and third par
ties; and upon examination of the
covenant in question there appears to
be nothing which places it within the
category of covenant that "runneth
with the land" with the characteristics
of such covenants, and with the re-
strictive forces which such covenants
are, by precedent and otherwise, in
tended to possess. Nor do we find but
the merest scintilla of evidence which
Classics any of the issues involved in
the precepts Of the constitution and its
guarantees.
This was clearly the view of the
Nations highest judiciary when it said,
'fUnder the Pleadings," this Court has
no jurisdiction; and, alas, the pleadings
dealt with constitutional issues rather
than the simple, common law elements
Of the ownership and alienation Of fee
simple estates, and covenants attached
thereto.