#### O. J. NYE and Wife, SALLIE ELIZABETH NYE, v. SUSAN D. WILLIAMS.

(Filed 23 September, 1925.)

Contracts — Breach—Demurrer — Motions — Statutes—Deeds and Conveyances.

In an action for breach of contract for failure of defendant to insert certain restrictions as to character of buildings, etc., to be erected on lots sold in a general development plan, wherein all purchasers, of which the plaintiff was one, were to have an advantage or benefit, the complaint alleging the breach of such contract in specific detail is not demurrable, and where more definiteness of allegation is sought, the remedy should be pursued by motion to make the complaint more definite and specific. C. S., 537.

*130Appeal by defendant from *Sinclair, J.,*at chambers, 24 June, 1925. From Edgecombe.

Action-by plaintiffs against defendant for breach of contract to insert restricted covenants in deeds for all city lots sold in the city of Rocky Mount known as “Edgemont.”

The defendant demurred, and from a judgment overruling the demurrer she appealed.

Plaintiffs complained as follows:

“1. That several years ago the defendant and her sister, Nannie E. Harper, owned a large tract of land near the city limits and partly within the then city limits of the city of Rocky Mount, Edgecombe County, and planned and formed a definite scheme to subdivide the same and sell the same off into lots according (to) the said scheme for strictly and exclusively a high-class residential property, and in the pursuance of the said scheme and plan had the said property subdivided, all the said *property*then being designated as Edgemont. The said property was mapped or platted accordingly, and the said map is registered in Map Book No. 1, at p. 58, of Edgecombe registry, they went further and extensively published notices of sale in which all the said exclusive features of the exclusive settlement were set out; they even went further and had fully pn’inted forms of the deed to be made containing practically all the exclusive features and conditions. All sales were made, in so far as plaintiffs can ascertain, strictly in accordance with the said scheme, other than the ones hereinafter referred to, and which do peculiar damage to the plaintiffs.

“In accordance with the said scheme and sale, many valuable improvements were placed, many handsome streets laid out and improved, and many handsome and commodious residences were erected thereon, and the same is now a populous and high-class residential section of the said city.

“2. That in the course of the development of the said scheme, and in the course of the sales, said Susan D. Williams and the said Nannie D. Harper, who are sisters, conveyed to their father, J. P. Daughtry, who plaintiffs are informed had a right of curtesy in all the said lands, lots Nos. 12 and 13, block 43, as shown on the said map, and subsequently he conveyed the said two lots to these plaintiffs, the said deeds being registered in Book 200, at p. 99, and in Book 223, at p. 162, both of which deeds and the said map are asked to read as a part hereof.

*“3.*That shortly after plaintiffs purchased the said two lots they erected a residence thereon, complying with the said scheme of development of Edgemont, as did scores of other purchasers.

“4. That after plaintiffs had erected their new residence on said lots, the defendant, in violation of the said plan of development, and after *131sbe bad sold practically all tbe more valuable lots in tbe section, sold and conveyed to one A. R. Bobbitt lot No. 14 of tbe said block 43, wbicb is adjacent to plaintiffs’ lots, all of wbicb front tbe same street'— namely, Cokey Road. In executing tbe deed to tbe said Bobbitt in violation of ber agreement, sbe left out several of tbe so-called restrictions and reservations of tbe said deeds and scheme, and especially did sbe leave out items three and four of tbe said restrictions.

“5. That tbe defendant solemnly obligated herself to tbe plaintiffs not to make any conveyance to. any other person unless tbe conveyance on tbe said Edgemont should contain all tbe restrictions and reservations hereinbefore stated, but in violation of tbe said agreement, and after plaintiffs bad purchased said lots and erected their home thereon, violated tbe said agreement in tbe execution of tbe said deed to tbe said Bobbitt.

“6. That almost immediately after tbe said Bobbitt bad thus obtained bis deed in fee not containing tbe said reservations and restrictions be erected a building thereon wbicb was much inferior to tbe one, or wbicb cost much less than tbe one, which should have been required by tbe restrictions wbicb defendant obligated to put in all deeds, but left out of bis, and in addition thereto be erected tbe said building jam up to plaintiffs’ line and jam up to tbe said Cokey Road, wbicb road or street both lots front, and be should not, under tbe said scheme of development, have built nearer tbe said street than twenty feet, as all other deeds required, and as' all other buildings on tbe said street and in tbe whole of Edgemont were built.

“7. That by reason of tbe construction of tbe said building in front of plaintiffs’ building, plaintiffs’ view is obstructed, and tbe breezes wbicb cooled plaintiffs’ front porch and other parts of tbe residence are obstructed, and in many other ways are plaintiffs inconvenienced and damaged that they would not have been if tbe deed bad been executed with tbe restrictions and reservations according to tbe said scheme of development, and plaintiffs have been thereby damaged in tbe sum of $1,000.”

Tbe defendant demurred, for that tbe complaint does not state facts sufficient to constitute a cause of action.

Tbe restricted covenants set out in tbe deed, referred to in paragraph two of tbe complaint, are as follows:

“First — Tbe party of tbe second part agrees not to sell tbe property hereinbefore described to persons of African descent until a period of twenty years from tbe date of this deed shall have expired.

“Second — That no liquors or ardent spirits are to be sold upon tbe property hereinbefore mentioned until a period of twenty years from tbe date of this deed shall have expired.

*132“Third — -That no dwelling-house or store-house shall be erected on the property hereinbefore conveyed to cost less than $1,500 until a period of twenty years from the date of this deed shall have expired.

“Fourth — That no dwelling-house, store-house, or other building-structure shall be erected on the property hereinbefore conveyed nearer than twenty feet to the main street on which said property faces until a period of ten years from the date of this deed shall have expired.

“Fifth — That the layout of the lots as shown on the plan or plot of 'Edgemont’ shall be adhered to, and no scheme of subdividing lots or facing main buildings on lots in other directions than as indicated by said plan shall be permitted until a period of fifteen years from the date of this deed shall have expired, provided that this covenant or agreement shall not apply to the grantors herein when making original conveyances of said property.

“Sixth — That not more than one residence or main structure shall be erected on any one lot as shown on said plan until a period of fifteen years from the date of this deed shall have expired.”

The following judgment was rendered upon the demurrer:

“This cause coming on to be heard before his Honor, Judge N. A. Sinclair, in chambers at Wilson, N. C., this 24 June, 1925, upon complaint and demurrer after notice having been given to both parties of such hearing, and being heard, and the plaintiff comes into court and withdraws1 the allegations of the complaint numbered 8 and 9, and takes a nonsuit as to the matters alleged in paragraph 8 of the said complaint, and as to the demurrer that the complaint in all other respects does not state a cause of action, the demurrer is overruled, and the defendant is allowed to answer as provided by statute.”

*B. B: Grantham for plaintiffs.*

*Jos. B. Ramsey and, John Kerr, Jr., for defendants.*

Vabser, J.

The sole question presented in this case is whether the complaint alleges an actionable breach of the contract.

This ease is readily distinguishable from actions in equity to enforce restricted covenants growing out of either specific contracts or a general scheme or plan of development. *Davis v. Robinson, 189*N. C., 597. No equitable relief in the instant case is sought, but the plaintiffs allege specifically, in paragraph five of the complaint, that the defendant solemnly obligated herself, to the plaintiff not to make any conveyance to any other person for lands in Edgemont unless the conveyance should contain all the restricted covenants which appear in the Daughtry deed, under which plaintiffs had purchased and built a residence, and that there was a breach of this solemn obligation.

*133In *Davis v. Robinson, supra,*tbis Court beld that such restrictions were not enforceable by injunctive relief unless they appeared in the deeds of the parties against whom the equitable relief was sought or in their chain of title. Of course, this did not affect the right to exercise the right to' resort to the equitable doctrine of correction to insert the covenants upon proper proof of all the elements necessary. But *Davis v. Robinson, supra,*does not hold that a landowner could not by contract bind herself to insert restrictive covenants in all other deeds for lots subsequently sold when founded upon sufficient consideration. Construing the complaint as required by C. S., 535; *Hartsfield v. Bryan, 111*N. C., 166; *Parker v. Parker,*116 N. C., 198; *Muse v. Motor Co.,*115 N. C., 466; *Wyatt v. R. R.,*156 N. C., 307; *Brewer v. Wynne,*154 N. C., 467; *Ludwick v. Penny,*158 N. C., 104; *Stokes v. Taylor,*104 N. C., 394; *Gregory v. Pinnix,*158 N. C., 147; *R. R. v. Main,*132 N. C., 445; *Phifer v. Giles,*159 N. C., 142; *McNinch v. Trust Co.,*183 N. C., 33, 41, we must hold that the complaint is not demurrable unless it is wholly insufficient. *Womack v. Carter,*160 N. C., 286. Under this rule the complaint does set out a cause of action in the light of the allegations contained in paragraph five thereof.

If the complaint is hot sufficiently specific in order to inform the defendant, so that she may prepare her defense intelligently, the remedy is not by demurrer, but by a motion addressed to the trial court to make the complaint more definite and specific. *Bank v. Duffy,*156 N. C., 83; *Womack v. Carter, supra;*C. S., 537.

"We forbear any discussion of the facts in this case, in order that no prejudice may result upon the trial. W"e expressly limit this opinion to the holding that the complaint is not demurrable.

The judgment appealed from is

Affirmed.