Amendment only limited the power of the state and was not an inhibition on the right of
individuals to contract with respect to their property. The covenant could be validly enforced in
equity even if it did not run with the land. "The important question then," the Court said, " is
whether the parties to the agreement have imposed such a restraint on the alienation of their
respective properties as to render the agreement void."132 The Court concluded that parties could
not covenant to restrict the sale of property to negroes, but they could covenant to prohibit the
use of the property by negroes.

The weight of authority is that a total restraint on alienation, for an
unlimited time, to a limited class, is void, though there is a difference of opinion
whether time can affect the question of the application of the rule....

The rules against restraints on alienations were only intended to
make conveyancing free and unrestrained, and had nothing to do with use and
occupancy.   It may be an anomalous situation when a colored man may own
property which he cannot occupy, but, if he buys on notice of such a restriction,
the consequences are the same to him as to any other buyer with notice.133

A decade later there had been many changes in the policies of the state. Plaintiffs,
however, still sought to enforce racially restrictive covenants. When two negro families, the
Smiths and the Saunders, purchased lots in 1946 subject to a restrictive covenant against sale,
lease, transfer or permitted occupation by any negro, neighboring landowners brought suit to
enforce the covenant. On February 27, 1948, the Chancellor in equity issued an injunction
against the occupation by the defendants. On May 3, 1948, the Supreme Court confounded
expectations in Shelley v. Kraemer. 334 U.S. 1 (1948) by holding that the enforcement of a
racially restrictive covenant was state action subject to the commands of the fourteenth
amendment. The plaintiffs in Maryland sought to distinguish Shelley on its facts when their case
came before the Court of Appeals. Donald Gaines Murray and Charles Houston filed a brief for
the defendant-appellants, and the Court decided in their favor without hearing their oral
argument. Goetz v. Smith.134 The Court noted that Shelley did not turn on the particular facts
presented.

We are not at liberty to decide to the contrary, or to attempt to whittle away the
effect of such decisions by holding that some of the statements made are dicta. If
the Supreme Court did not mean what it said, or said more than it should, or what
it should not have said, the responsibility is its and not ours.135

Donald Murray's victory was noted at the law school from which he had graduated. The
University of Maryland School of Law had seen some major changes in its student body.   The
Board of Editors for volume 10 of the Maryland Law Review included two young black students,
Juanita Jackson Mitchell and Robert B. Watts. One of the student notes in that volume discussed
Shelley and Goetz.

137