Whistling Dixie

I told myself I wasn't going to do anything other than work on my paper on the Fugitive Slave Act of 1850 and what it teaches us about public perceptions of the rule of law in antebellum jurisprudence.  But, Mr. Ingram's covenant against Yankees has resufaced.  (Thanks to Volokh Conspiracy, who brought this to my attention and Never Yet Melted, which brought it to Volokh's attention.)  A lesson here: be careful what you put in covenants.

Way back in 1998, when this first made the news, Shubha Ghosh (of the antitrustprof blog) and I wrote a short (and we hoped amusing) essay on the covenants.  The covenants purport to prohibit sale to any member of the Yankee. Yankees are defined as people who've lived north of the Mason-Dixon line for more than a year or were born north of the Mason-Dixon line.  But didn't Ingram also include an exemption: if Yankees take a southern loyalty oath and whistle dixie as a sign of loyalty, then you can buy the property.

Lots to say about this, including that Langdon Cheeves once owned the property.  And you know what?  His daughter, Louisa McCord, who was one of the leading proslavery writers of the 1850s, lived in Philadelphia for a few years while her father was serving as president of the Second Bank of the U.S.  Guess she couldn't buy the property under the covenant.

The buyers should have little fear: the covenant's unenforceable.  It's a violation of the restraint against alienation; the benefit's in gross (it seems), so the burden won't run to subsequent buyers; it's likely now been waived by laches (according to the most recent paper, no one's tried to enforce it); and it likely violates the Fair Housing Act.

I use this example in class every year when talking about covenants.  Makes for some amusing discussion.

I've posted our paper here.

UPDATE:  Our friends at the Island Packet, the newspaper that broke the story about the current problems with Mr. Ingram's covenants, ran my op-ed on the problems with them on July 17,

Alfred L. Brophy
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