
    KATHAN v. WILLIAMS.
    1. Covenants—^Restrictions—Colored Persons—Common Plan or Agreement.
    Subdivision in which lots were marketed as high-class, residential property and subject to building restrictions but recorded restrictions silent as to use and occupancy by colored persons may not be restricted against use by such persons where there was no plan or agreement common to all home owners in the subdivision relative to such use.
    2. Costs—Brief.
    No costs are allowed appellees upon affirmance of decree where they filed no brief.
    Appeal from Wayne; Richter (Theodore J.), J.
    Submitted January 4, 1944.
    (Docket No. 19, Calendar No. 42,481.)
    Decided June 30, 1944.
    Bill by Dr. Albert 0. Kathan and others against Alfred C. Williams and others to impress restrictions as to use and occupancy upon real estate and to enjoin use by defendants Williams. Decree for defendants. Plaintiffs appeal,
    Affirmed,
    
      Frank G. Sibley and Arthur E. Fixel, for plaintiffs.
   Reid, J.

This case was submitted upon the same testimony taken in the case of Kathan v. Stevenson, 307 Mich. 485. The relief sought is to enforce a claimed reciprocal negative easement respecting property adjoining the property involved in that case, barring use and occupancy by persons of African descent. For reasons similar to those recited in the opinion of Mr. Justice Wiest, the trial judge found that there never had been any restrictions limiting the use and occupancy of these premises to persons of the Caucasian race either placed on record, in any deeds of conveyance, or adopted by general plan by or among the persons interested in properties on Arden Park that were binding upon owners' and future purchasers without notice; and that there was no actual notice to defendants that these parcels could not be used and occupied by them as their residences. In accordance with that finding the trial judge by his decree dismissed the bill.

In Kathan v. Stevenson, supra, at p. 490 this Court said:

“There was no plan or agreement common to all home owners in the subdivision relative to racial use and occupancy of premises.”

The finding by the trial judge is determined to be correct. The decree appealed from is affirmed. The appellees not having filed a brief, no costs are allowed.

North, C. J., and Starr, Wiest, Btjtzel, Sharpe, and Boyles, JJ., concurred. Bushnell, J., did not sit.  