Nye v. Williams

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.

In 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.