ORIGINAL
DECREE
STATE OF ILLINOIS
COUNTY OF COOK
IN THE CIRCUIT COURT OF COOK COUNTY
Anna M. Lee, Edward L. Govanus, et
al.,
vs.
Carl A. Hansberry, Nannie
L. Hansberry, et al.
General Number 37 C 6804 in Chancery
DECREE.
1. Now comes the plaintiffs, Anna M. Lee, a widow, Edward L. Govanus, Esther Govanus, his
wife, Louise G. Anderson, a widow, Lyman M. Anderson, her son, and Kathryn
Luttrell, a spinster, by Charles A. Churan, Schuyler
& Hennessey, and Angus Roy Shannon, their attorneys, and the defendants,
Carl A. Hansberry, and Nannie
L. Hansberry, his wife, by C. Francis Stradford, their attorney; the defendants, Jay B. Crook and
Hallie C. Crook, his wife, by Arthur A. Basse, their attorney; defendant James Joseph Burke, by Loring B. Moore, his attorney; the defendants, Harry E.
Pace and Supreme Liberty Life Insurance Company, a corporation, by Earl B.
Dickerson and Truman K. Gibson, Jr., their attorneys and the defendant, Israel
Katz, by Irvin C. Mollison, his attorney.
2. And this cause coming on to be heard upon the complaint and amendment
thereto, the answers of the defendants, James Joseph Burke, Harry H. Pace,
Israel Katz and Supreme Liberty Life Insurance Company; the amended answers of
the defendants, Carl A. Hansberry, Nannie L. Hansberry, Jay B. Crook
and Hallie C. Crook, the objections of
103
plaintiffs to the amended answer of defendants, Carl A. Hansberry,
Nannie L. Hansberry, their
objections to the several answers of the defendants, Harry E. Pace, Supreme
Liberty Life Insurance Company and Israel Katz; the objections to the amended
answer of the defendants, Jay B. Crook and Hallie C.
Crook, the reply of the plaintiffs to the amended answers of the defendants
Carl A. Hansberry, Nannie
L. Hansberry, Jay B. Crook and Hallie
C. Crook, and to the respective answers of the defendants, James Joseph Burke,
Israel Katz and Supreme Liberty Life Insurance Company, and the rejoinder of
the defendant, James Joseph Burke, to said reply and upon the exhibits and
proofs received in evidence.
3. And the Court having heard and considered the evidence and proofs offered
and taken, the arguments of the attorneys for the respective parties, the
pleadings and exhibits in the case, and being now fully advised in the
premises, finds that it has jurisdiction of the subject-matter of this cause of
the parties thereto; that the material allegations of the plaintiffs' Complaint
as amended are true; that the equities of this cause are with the plaintiffs
and that said plaintiffs are entitled to the relief prayed for in their
Complaint as amended, and that the temporary injunction heretofore entered, be
and it is hereby made permanent.
4. And the Court further finds that the plaintiffs and the defendants are all
residents of the City of Chicago, County of Cook and State of Illinois; that
on, to-wit: the 30th day of September, A. D. 1927, more than five hundred (500)
white persons, owners of real estate on the one or the other side of Evans,
Langley, Champlain, St. Lawrence, Rhodes, Eber-
104
hart, Vernon and South Park Avenues between 60th and 63rd Streets, and on 60th,
61st and 62nd Streets, between South Park Avenue and Cottage Grove Avenues in
the City of Chicago, County of Cook and State of Illinois, entered into, signed
and executed a certain written agreement referred to as "Restrictive
Agreement," which, except as to the signatures and notarizations thereof,
is in words and figures as follows, to-wit:
"This Agreement entered into this 30th day of
September, 1927, by and between the undersigned owners of land on the one or
the other side of Evans, Langley, Champlain, St. Lawrence, Rhodes, Eberhart, Vernon and South Park Avenues, between 60th and
63rd Streets and on 60th, 61st and 62nd Streets between South Park and Cottage
Grove Avenues, in the City of Chicago, witnesseth,
that
And, Whereas, the parties hereto feel that the restrictions and covenants
hereinafter imposed and created are for the best interests of all the parties
hereto and of the property hereinafter described.
In Consideration of the premises and of the mutual covenants hereinafter made,
and of the sum of Five Dollars ($5.00) in hand paid to each of the parties
hereto by each of the other parties hereto, the receipt of which is hereby
acknowledged each party as owner of the parcel of land above described
immediately under his name, does hereby covenant and agree with each and every
other of the parties hereto, that his said parcel is now and until January 1st,
1948, and thereafter until this agreement shall be abrogated as hereinafter provided,
shall be subject to the restrictions and provisions hereinafter set forth, and
that he will make no sale, contract of sale, conveyance, lease or agreement and
give no
106
license or permission in violation of such restriction or provisions, which are
as follows:
1. The restriction that no part of said premises shall in any manner be used or
occupied directly or indirectly by any negro or negroes, provided that this
restriction shall not prevent the occupation, during the period of their
employment as janitors' or Chauffeurs' quarters in the basement or in a barn or
garage in the rear, or of servants' quarters by negro janitors, employed as
such for service in and about the chauffeurs or house servants, respectively,
actually employed as such for service in and about the premises by the rightful
owner or occupant of said premises.
2. The restriction that no part of said premises shall be sold, given, conveyed
or leased to any negro or negroes, and no permission or license to use or
occupy any part thereof shall be given to any negro except house servants or
janitors or chauffeurs employed thereon as aforesaid.
The covenants, restrictions, and agreements herein contained shall be
considered as appurtenant to and running with the land, and shall be binding
upon and for the benefit of each party hereto and may be enforced by any of the
parties hereto by any permissible legal or equitable proceedings, including
proceedings to enjoin violation and for specific performance; provided,
however, that in any action brought to set aside any deed made in violation of
any of the provisions of this agreement, it shall be a good defense thereto
that prior to the institution of each suit, the title to the premises then in
question had become vested in, and was then owned by a corporation or a white
person, for value; and provided further, that the lien of no mortgage or trust
deed in the nature of a mortgage shall be impaired
106
or invalidated by reason of the breach of any of the provisions of this
agreement, whether any such breach shall have occurred prior or subsequent to
the recording of any such mortgage or trust deed; and provided further, that
nothing contained in the foregoing provisos shall in any manner impair the
right of any person or persons interested to enforce at all times and against
all persons the restrictions in this agreement contained prohibiting the use or
occupation of all or any part of said premises by a negro or negroes.
This agreement and the restrictions herein contained shall be of no force or
effect unless this agreement or a substantially similar agreement, shall be
signed by the owners above described, or their heirs or assigns, and recorded
in the office of the Recorder of Deeds of Cook County, Illinois, on or before
It is understood that for convenience, a number of counter-part or concurrent
instruments have been prepared of even date herewith, the text of each of which
is substantially the same as that of this instrument, and that the execution of
any one of such instruments shall have the same effect as the execution of this
instrument by the same person would have, and it is understood that parties to
107
this agreement shall include not only those persons who shall sign this
instrument but also all persons who shall sign any of said counterpart or concurrent
instruments, and that this instrument and all of said counterpart or concurrent
instruments shall constitute one agreement. It being contemplated that changes
in ownership may occur between the date which this instrument bears and that
date when it shall become effective, or that there may possibly be some misrecital of ownership herein contained, it is further
understood that the execution hereof by the person who shall be the owner of
any of said parcels of land at the time of such execution shall have the same
effect as though such person had been the owner thereof on the date hereof and
was so described herein, whether the recital of ownership herein contained be
made to conform to the facts as to ownership at the time of execution, the
recital in any of said instruments shall be made different from that contained
in the others, that difference shall not prevent all of such instruments from
being construed to be substantially similar to each other.
No restriction imposed hereby shall be abrogated or waived by any failure to
enforce the provisions hereof, no matter how many violations or breaches may
occur.
This agreement and the restrictions herein expressed may be abrogated at any
time on or after January, 1948, by the written agreement of the owners of
seventy-five per centum of the frontage owned by the parties who shall sign
this agreement, as herein set forth, such abrogation to be effective from and
after the date of delivery and recording of such written agreement. Provided,
however, that
108
if the owner of any of said parcels or any part thereof shall be under
disability, as for example, that of minority, or for any other reason shall not
have the power to execute such abrogation agreement, as for example, when the
title is held without such power, by testamentary trustee or other fiduciaries,
the frontage so owned shall be treated as though the owners thereof had power
to sign, and had signed such abrogation agreement, for the purpose of
determining whether such abrogation agreement becomes effective or not under
the provision of this paragraph.
The invalidity of any restriction hereby imposed, or of any provision hereof,
or any part of any such restriction or provision shall not impair or effect in
any manner the validity, enforceability or affect of the rest of this
agreement.
Pronouns herein employed in the masculine gender shall be construed to include
the feminine and neuter genders, and the word "party" or "persons " to include natural and artificial parties or
persons.
The term 'negro' as used herein shall include every person having one-eighth
part or more of negro blood, or having any appreciable mixture of negro blood,
and every person who is what is commonly known as a 'Colored person'.
In any case where there is a recorded lease of any parcel of the property
described herein for a term ending more than five years after any given date,
the owner of the reversion and the owner of the leasehold estate together shall
be deemed to be the owners of such parcel on such given date within the meaning
of this contract, and whenever the sig-
109
nature of the owner of such parcel shall be required on such given date under
the provisions, whatever interest any signer of this instrument owns in any of
said property shall be bound by the provisions hereof. Leases under unrecorded
leases on any given date and under leases for terms ending less than five years
after such given date shall not be regarded as owners within meaning of this
contract.
The undersigned spouses of owners of land herein described join herein for the
purpose of signifying their assent hereto and of subjecting their rights of
dower, if any, to the restrictions and provisions imposed hereby.
Time is of the essence of this contract and all the terms, conditions and
provisions hereof.
The covenants, restrictions and agreements herein contained shall be binding
on, and for the benefit of, and may be enforced by and against, each party
hereto, his successors and assigns, and the heirs, executors, administrators and
successors of them respectively.
In Witness Whereof, the parties hereto have hereunto set their hands and seals
the day and year first aforesaid "
5. That said Restrictive Agreement consisted of four (4)
parts, namely: (a) Agreement with signatures of said owners thereto attached;
(b) a list of properties covered by said Agreement, with legal descriptions and
street numbers and frontages; (c) and (d) the notarial
certificates of acknowledgments of the signers of said Agreement were filed for
record simultaneously in the office of the Recorder of Deeds of Cook County and
recorded in Book 25525 of Records as follows:
110
(a) The Restrictive Agreement with the signatures of the signers thereof on
Pages 5 to 31, both inclusive, as Document No. 9914711.
(b) The list of properties signed up, according to street number, legal
description and frontage on Pages 32 to 52, both inclusive, as Document No.
9914712.
(c) The notarial certificates of acknowledgements of
the signers of said Agreement on Pages 53 to 116, both inclusive, as Document
No. 9914713 and on Pages 117 to 188, both inclusive, as Document No. 9914714.
6. That said Restrictive Agreement was offered and received in evidence as
Plaintiffs' Exhibit 5; the notarial certificates of
acknowledgments thereof as Plaintiffs' Exhibit 5A and 5B and said list of
properties as Plaintiffs' Exhibit 5C.
7. The Court further finds that the defendants and each of them objected to the
admissibility of said Restrictive Agreement without proof that it was signed by
the requisite number of property owners comprising ninety-five per centum (95%)
of the frontage thereof and the Court finds from the competent proof adduced
upon this question that less than ninety-five per centum (95%) of the frontage
is represented by the signatures to said Agreement; that the plaintiff offered
no proof upon this subject, relying entirely upon their contention that the
validity and enforceability of this Agreement had already been passed upon,
adjudicated and determined by courts of competent jurisdiction and this Court
finds same to be true and sustains the contention of the plaintiff and admitted
in evidence said exhibits.
111
8. The Court further finds that by the recordation of said Restrictive
Agreement as aforesaid the defendants, and each of them, had constructive
notice of said Restrictive Agreement and the contents thereof.
9. The Court further finds that it is provided in said Restrictive Agreement,
among other things, that the covenants, restrictions and agreements therein
contained shall be considered as appurtenant to and running with the land and
shall be binding upon and for the benefit of and might be enforced by and
against each party thereto, his successors and assigns and heirs, executors,
administrators and assigns until January 1,1948 and thereafter until abrogated
by the written agreement of the owners of seventy-five per centum (75%) of the
frontage owned by the parties signing said agreement.
10. The Court further finds that on, to-wit: the date of the execution of said
Restrictive Agreement, and on the date of the recording thereof, one Eva Somerman was the owner of record of the following described
real estate within the area covered by said Restrictive Agreement, to-wit:
Lot Twenty-seven (27) in Block Two (2) in Resubdivision of Blocks Eleven (11) and Twelve (12) in Resubdivision of the Washington Park Club Addition to Chicago, in the South half (Sit) of the South East quarter (SE-1/4) of Section Fifteen (15), Township Thirty-eight (38) North, Range Fourteen (14), East of the Third (3rd) Principal Meridian' commonly known as 6140 Rhodes Avenue, Chicago, Cook County, Illinois.
That said real estate was then and is now improved with a
three-story and basement brick
112
apartment residence that said Eva Somerman, a white
person, executed and acknowledged said agreement before the recordation
thereof; that said Eva Somerman and her husband
conveyed said premises to one Joseph G. Stoltz, also
a white person, by quit-claim deed recorded May 31, 1933; that said Joseph G. Stoltz, by quit-claim deed recorded April 27,1933, conveyed
said premises to the First National Bank of Englewood, a corporation; that the
First National Bank of Englewood conveyed said premises by deed dated May 15,
1937 to the defendant Jay B. Crook, a white person; that the deed from said
Bank to Crook was recorded on May 26, 1937 that on the evening of the same day,
the defendants Carl A. Hansberry and Nannie L. Hansberry, his fife,
moved into the first apartment of said 6140 Rhodes Avenue, Chicago, Illinois
(hereinafter for brevity sometimes referred to as the Hansberry
property) and were in possession of said premises at the time of the filing of
the complaint herein; that on May 27, 1937 said Jay B. Crook and his wife
conveyed said premises to defendants Carl A. Hansberry
and Nannie L. Hansberry,
his wife; that said Carl A. Hansberry and Nannie L. Hansberry are negroes;
that the defendants William T. Mooney and Elizabeth Cotsones
were white tenants occupying the second and third apartments of said 6140
Rhodes Avenue, Chicago; that up to the time the said Hansberrys
moved into said premises, the same had never been occupied or owned by negroes.
11. The Court further finds that the defendant James J. Burke for a number of
years prior to March 1, 1937 was the President and later the Executive Manager
of the Woodlawn Property
113
Owners' Association, the membership of which consisted of property owners
interested in the enforcement of the said Restrictive Agreement; that said
James J. Burke having some misunderstanding with the said Association, resigned
about Starch 1, 1937 from said Woodlawn Property Owners' Association and
severed his connection therewith, but before resigning threatened to put
negroes in every block in the area covered by said Restrictive Agreement, which
area was commonly known and designated as the Washington Park Subdivision.
12. The Court further finds that said Jay B. Crook was not a bona-fide
purchaser of said premises at No. 6140 Rhodes Avenue, but acting in conspiracy
with said James Joseph Burke by misrepresentation, deceit and fraud prevailed
upon certain officers of said First National Bank of Englewood to sell said
premises to said Crook and to execute said deed under their belief that the
sale of said premises to him was bona-fide and that said premises would not be
sold or conveyed to a negro that said Crook was in fact then and there acting
for and on behalf of the defendant Carl A. Hansberry,
a negro, to acquire said premises for said Hansberry;
that the said Jay B. Crook acting on behalf of said Carl A. Hansberry,
applied to the said Supreme Liberty Life Insurance Company, a corporation,
having its principal office in Chicago, for a loan of Forty-four Hundred
Dollars ($4400.00) on said No. 6140 Rhodes Avenue property; that said loan was
approved by the executive officers of said Supreme Liberty Life Insurance
Company and thereupon as security for said loan a trust deed was executed by
the defendants Jay B. Crook and Hallie C. Crook, his
wife, to the Chi-
114
cago Title & Trust Company, as trustee, to secure
a principal note executed by said Jay B. Crook and his wife for Forty-four
Hundred Dollars ($1400.00) payable to the order of "Bearer." All the
foregoing acts by said parties were a part and parcel of the fraudulent scheme
and conspiracy inaugurated by James Joseph Burke that said restricted area
would be no longer free of negro inhabitants.
13. The Court further finds that the plaintiff, Anna M. Lee, and her deceased
husband, High S. Lee, were at the time of the recording of said Restrictive
Agreement, the owners, as joint tenants, of the two-story and basement
two-apartment brick building commonly known as No. 6148 Rhodes Avenue, Chicago,
Illinois; that said plaintiff Anna M. Lee and High S. Lee, her husband, signed,
executed and acknowledged said Restrictive Agreement and since then have not
permitted their said premises to be occupied by negroes that since the death of
said High S. Lee, the said Anna M. Lee, a widow, is now the sole owner of said
No. 6148 Rhodes Avenue that said Anna M. Lee occupies one apartment and a white
tenant the other apartment; that said premises are her homestead and are
located ninety (90) feet south of the Hansberry
property, on the same side of the street and in the same block; that said Anna
M. Lee is desirous that said Restrictive Agreement be enforced against negro
occupancy or ownership.
14. That the plaintiffs, Edward I. Govanus and Esther
Govanus, his wife, are now and ever since said
Restrictive Agreement was recorded have been the owners of the three-story and
basement three-apartment brick building and premises commonly known as No. 6142
Rhodes Avenue, Chicago,
115
Illinois, immediately south of and adjoining the Hansberry
property; that said Edward L. Govanus and Esther Govanus are white persons; that they signed, executed and
acknowledged said Restrictive Agreement that they occupy the first apartment of
their said premises with their family as their homestead and lease the second
and third apartments to tenants; that they have never permitted their said
premises to be occupied by negroes, and are desirous that said Restrictive
Agreement be enforced against negro occupancy and ownership.
15. That Kathryn Luttrell, a white person, acquired title to the premises
commonly known as No. 6136 Rhodes Avenue, Chicago, from one Patrick T. Burke, a
white person, who was one of the signers of said Restrictive Agreement that
said premises are improved with a three-story and basement three-apartment
brick building and occupied exclusively by white persons; that said premises
have never been occupied by negroes, that the said premises are immediately
north of and adjoining the Hansberry property at No.
6140 Rhodes Avenue; that when said Hansberry took
possession of
his property, said Kathryn Luttrell had one vacant apartment which she had
leased to a white tenant from June 1, 1937; that when said Hansberry
took possession of his building and because thereof this said plaintiff's
tenant refused to move into said vacant apartment and that said apartment has
been vacant ever since; that said Kathryn Luttrell is desirous that said
Restrictive Agreement be enforced.
16. That the plaintiff, Louise G. Anderson, a widow, and Lyman M. Anderson, her
son, are white persons and are the owners of the premises com-
116
monly known as No. 6117 and 6119 Eberhart
Avenue, Chicago, Illinois, improved with a three-story and basement
six-apartment brick building that said premises are located in the same square
block with said No. 6140 Rhodes Avenue; that said Eberhart
Avenue is one block west of Rhodes Avenue, and that the rear of said Anderson
premises are located about two hundred (200) feet north of the Hansberry property and that plaintiff Louise G. Anderson
and her deceased husband, as joint tenants, both signed and acknowledged said
Restrictive Agreement that their said premises have never been occupied or
owned by negroes that upon the death of said husband of the plaintiff Louise G.
Anderson, said Louise G. Anderson and her son, Lyman M. Anderson, became the
owners of said premises and are both desirous that said Restrictive Agreement
be enforced against negro occupancy or ownership.
17. The defendant Israel Katz was at the time of the filing of the Complaint
herein the owner of premises known and described as follows, to-wit:
Lot Forty-five (45) in Block One (1) in John J. Mitchell's South Park Subdivision of Blocks Nine (9), Ten (10) and Eleven (11) in Maher's Subdivision of the Southeast quarter (SE-1/4) of Section Fifteen (15), Township Thirty-eight (38) North, Range Fourteen (14), East of the Third (3rd) Principal Meridian, commonly known as 6018 Vernon Avenue, Chicago, Cook County, Illinois.
That said defendant Israel Katz is a white person and was
one of the signers of said Restrictive Agreement before the recordation thereof
and that said Katz's premises are within the area covered by said Restrictive
Agreement.
117
18. That the defendant James Joseph Burke admits in his answer that in
the year 1928 he purchased, through his wife, Olive Ida Burke, the premises
commonly described as No. 6039 Vernon Avenue, Chicago, Illinois, and the Court
finds that said James Joseph Burke was, at the time of the filing of the
Complaint herein, the real beneficial owner of said premises at No. 6039 Vernon
Avenue, although the record title thereto was then in the name of Olive Ida
Burke; that said James Joseph Burke and Olive Ida Burke, his wife, are white
persons and that their said premises are located within the area covered by said
Restrictive Agreement; that said Olive Ida Burke acquired title to said No.
6039 Vernon Avenue, by mesne conveyances from one
Hannah Studdert, who was one of the signers of said
Restrictive Agreement.
19. The Court further finds that said defendant Harry H. Pace, at the time of
the filing of the Complaint herein, was occupying and in possession of the
premises commonly known as No. 413 East 60th Street, Chicago, Cook County,
Illinois in violation of said Restrictive Agreement; that an action was filed in
the Superior Court to dispossess said Pace from said premises on May 12, 1937,
for violating said agreement but since the filing of the Complaint herein the
said Harry H. Pace acquired title to said premises and is now the record owner
thereof that the legal description of said property is as follows:
Lot Seven (7) in Block One (1) in John J. Mitchell's South Park Subdivision of Blocks Nine (9), Ten (10) and Eleven (11) in Maher's Subdivision of the Southeast quarter (SE-1/4) of Section Fifteen (15), Township Thirty-eight
118
(38) North, Fourteen (14), East of the Third (3rd) Principal
Meridian, in
that said action is still pending
that said Harry H. Pace is a negro; that at the time of the signing of said
Restrictive Agreement and up to the 14th day of April, A. D. 1937, one Walter
J. Harrower was the owner of record of said So. 413 East 60th Street that said
Walter J. Harrower is a white person and one of the signers of said Restrictive
Agreement; that said premises are located within the area covered by said
Restrictive Agreement that said Harry H. Pace is a lawyer or and also the
President of the defendant Supreme Liberty Life Insurance Company. All the
facts and circumstances surrounding the procedure and plan whereby said Pace
acquired title to said premises shows a continuation of the fraudulent scheme
of James Joseph Burke and his co-conspirators to prosecute his wrongful purpose
and threats to bring about the destruction of said Restrictive Agreement and
cause negroes to occupy the said restricted area.
20. The court further finds that the defendants in their several answers urge
and contend that the Restrictive Agreement was not executed by the owners of
ninety-five per centum (95%) of the frontage as is prescribed by said Agreement
as a prerequisite to its enforceability and because of that fact said Agreement
is null and void. To this contention or issue the plaintiff pleaded estoppel by verdict of res
adjudicata contending that the execution,
delivery, performance, condition precedent, validity, force and effect of this
same Agreement was all adjudicated in a representative action entitled Burke
vs. Kleiman, appearing in Volume 277,
119
Illinois Appellate Reports, page 519. The Court finds that the same arch-conspirator
James Joseph Burke was one of the prime instigators of said suit Burke vs. Kleiman and in this cause he represents that said cause of
action, namely: Burke vs. Kleiman was a friendly,
collusive and fraudulent suit, purely a dummy proceeding and that therefore it
should not be considered as determinative of any of the issues involved in this
case. This Court finds that the said James Joseph Burke and his associated
conspirators come into this court with unclean hands and cannot by reason of
their misconduct avail themselves of the argument or defense that Burke vs. Kleiman does not constitute res
adjudicata. This Court therefore finds from the
evidence, pleadings and exhibits offered in respect of the decree in the case
of Burke vs. Kleiman, aforesaid, and the affirmances thereof: that the decree in Burke vs. Kleiman, as a matter of law, is res
adjudicata of the execution, recordation, general
validity and enforceability of the Restrictive Agreement involved herein.
21. The Court further finds that the said Restrictive Agreement was also
sustained and held in full force and effect by the Superior Court of Cook
County in a final decree entered on May 6, 1936 in the case entitled Howard C. Penoyer et al. vs. Sarah Cohn, General No. 34S-16816,
involving the premises at No. 6049-6051 South Park Avenue, Chicago, Illinois,
and in the case of George W. Cook et al. vs. Milton S. Yondorf,
et al., Superior Court of Cook County, General No. 34S-1261, affecting the
premises No. 6024-6030 South Park Avenue, Chicago, and a final decree entered
in said cause on October 20, 1936, that said Restrictive Agreement
120
was in full force and effect but that same did not affect last named premises
for the reason that the title acquired by the defendant Yondorf
in that cause came through foreclosure of a trust deed on said premises which
was of record prior to the said Restrictive Agreement; that said last named
decree has not been appealed from or reversed, but is in full force and effect.
22. The Court therefore finds that the signers of said Restrictive Agreement,
their heirs, grantees, assigns and privies to said agreement are a class of
persons who have common rights and who need protection against the violation of
said agreement; that the plaintiffs in this case are all members of said class;
that the defendants Carl A. Hansberry, Nannie L. Hansberry, Jay B.
Crook, Hallie C. Crook and Harry H. Pace, are all
members of this same class as privies in estate, being remote grantees of
persons who signed the Restrictive Agreement; that said Restrictive Agreement
is a covenant running with the land; that the defendant Israel Katz is a member
of said class and personally signed said Restrictive Agreement; that the
defendant James Joseph Burke is a member of the class; that the defendant Olive
Ida Burke was and is a member of the said class; and brought action entitled
Burke vs. Kleiman not alone on her own behalf, but on
behalf of each and every member of this class as the representative of each and
all of them; that the decree in said cause of Olive Ida Burke vs. Isaac Kleiman, et al., was affirmed by the Appellate Court of
Illinois, First District, and that an Order of Affirmance
was filed in the Superior Court and a writ of Assistance issued.
121
23. The Court further finds that said cause of Burke vs. Kleiman was a class action, and that the questions of the
execution, delivery, performance of conditions precedent, validity, force and
effect of the identical Restrictive Agreement involved in this cause were in
issue, and necessarily adjudicated and in that adjudication were upheld and
decreed to exist; that said facts have been properly pleaded by the plaintiffs
as res adjudicata
as an estoppel by verdict through the Complaint as
amended and by the Reply of the plaintiffs to the answers and amended answers
of the several defendants and proved by the certified copies of the Bill of
Complaint, the answers, the stipulation of facts and decree in said Superior
Court ease of Burke vs. Kleiman, the Order of Affirmance thereof by the Appellate Court introduced in
this cause.
24. The Court further finds that said defendant Israel Katz made threats to
sell, lease or convey his property to negroes that said Israel Katz is one of
the signers of said Restrictive Agreement and is bound thereby and it is
therefore ordered that the temporary injection heretofore entered against said
Israel Katz be and the same is made permanent.
25. The Court further finds that said Restrictive Agreement is not against
public policy, is not violative of any Article of the
Constitution of the United States or of the State of Illinois, is not
unconstitutional, is not against the public welfare, or in restraint of trade,
or in restraint of alienation, does not deprive the defendants of any of their
civil rights guaranteed said defendants of any of their civil rights guaranteed
said defendants or negroes as a class by the due process clauses
122
of the Federal or State Constitutions, and it is therefore ordered that the
objections of the plaintiffs to the amended answers the several defendants in
respect to the defenses described in this paragraph be and the same are now
sustained.
26. The Court further finds that said Restrictive Agreement was at the time of
the filing of the Complaint herein and is now in full force and effect and
binding on the defendants Carl A. Hansberry, Nannie L. Hansberry, his wife,
Jay B. Crook, Hallie C. Crook, his wife, James Joseph
Burke, Harry H. Pace, Supreme Liberty Life Insurance Company and Israel Katz
and each and all of them; that the said agreement is a covenant running with
the land, and that said plaintiffs are entitled to enforce said Restrictive
Agreement that the possession and ownership of said No. 6140 Rhodes Avenue,
Chicago, Illinois, by the defendants Carl A. Hansberry
and Nannie L. Hansberry, is
a violation of said Restrictive Agreement; that said plaintiffs have not an
adequate, full and complete remedy at law and that the plaintiffs will suffer
irreparable injury to their respective properties unless said Restrictive
Agreement be enforced including the enforcement thereof by the lawful processes
of this Court.
27. The Court further finds that said plaintiffs are not and have not been
guilty of [aches or negligence that the signers of said Restrictive Agreement
have been diligent in enforcing said agreement and that the violation of said
agreement by the defendants Carl A. Hansberry and Nannie L. Hansberry particularly
affects the property rights of the respective plaintiffs and each of them,
123
for the reason that said violation is proximate to the premises of the
plaintiffs.
28. It is, therefore, ordered, adjudged and decreed that the temporary
injunction issued by this Court on July 8, 1937 be and the same is declared
permanent against each and every one of said defendants, Carl A. Hansberry, Nannie L. Hansberry, Jay B. Crook, Hallie
C. Crook, James Joseph Burke, Harry H. Pace, Supreme Liberty Life Insurance
Company, Israel Katz and each of them and against the agents, servants,
attorneys and solicitors of said defendants.
29. And it is further ordered, adjudged and decreed by this Court that said
defendants, Carl A. Hansberry and Nannie
L. Hansberry, convey all their right, title and
interest in the said premises and described as:
Lot Twenty-seven (27) in Block Two (2) in Resubdivision of Blocks Eleven (11) and Twelve (12) in Resubdivision of the Washington Park Club Addition to Chicago, in the South half (S-1/2) of the Southeast quarter (SE-1/4) of Section Fifteen (15), Township thirty-eight (38) North, Range Fourteen (14), East of the Third (3rd) Principal Meridian, commonly known as 6140 Rhodes Avenue, Chicago, Cook County, Illinois.
within thirty (30) days to a person who is not a negro,
within the terms of, and subject to said Restrictive Agreement, and on failure
so to do that Isadore Brown, one of the Masters in
Chancery of this Court, convey all the right, title and interest of said Carl
A. Hansberry and Nannie L. Hansberry, his wife, by a good and sufficient deed, subject
to said Restrictive Agreement, to the defendant, Jay B. Crook, to whom the same
was con-
124
veyed in good faith by said First National Bank of
Englewood and that the said Jay B. Crook, Hallie C.
Crook, his wife, said Carl A. Hansberry and Nannie L. Hansberry, his wife,
and the grantee or grantees of any or either of them, their heirs, successors,
administrators, executors, or assigns, and each of them, their agents, or
attorneys, be and they are hereby permanently enjoined until January 1, 1948,
and thereafter until said Restrictive Agreement shall be abrogated according to
its terms, from selling, conveying, leasing or renting said premises at No.
6140 Rhodes Avenue, Chicago, or any part thereof to a negro or negroes, or
permitting a negro or negroes to occupy said premises or any part thereof
except such negro house-servants, janitors, or chauffeurs actually employed as
such for service in and about said premises by the rightful owner or occupancy
of said premises that said injunction issue without bond and that the bond
filed by the plaintiffs for the issuance of the temporary injunction be
cancelled, and of no further effect, and that upon the conveyance of said
premises at No. 6140 Rhodes Avenue, Chicago, Illinois, to said Jay B. Crook, or
some other person who is not a negro that the rents deposited with the Clerk of
this Court or due from tenants since the temporary injunction was entered
herein, and future rents be turned over to said Jay B. Crook, or to the person
who is not a negro to whom said premises may be conveyed by said Carl A. Hansberry and Nannie L. Hansberry, his wife, and that the defendants pay the costs
of this suit and that execution issue therefor as at
common law.
It is further ordered that the original exhibits
125
introduced in evidence may be withdrawn by the respective parties and photostatic or typewritten copies
thereof filed in lieu thereof.
Enter: George W. Bristow, Judge.
This WWW page was created by
