1. The statute under which this suit to quiet title against restrictions is brought ( P.L. 1909 p. 233; Comp. Stat. p. 5405) is not available to a complainant who holds lands under a deed in which are set forth the questioned restrictions.
2. Two conveyances were made at a time when the common grantor had not yet formulated any general scheme for the development of the neighborhood. These covenants are not enforceable by virtue of such a general plan and it is immaterial that a few years later a plan was made and put into effect on property adjoining the lands conveyed.
3. Whether the common grantor intended to and did create a general neighborhood plan, is a question of fact to be answered not only by the wording of the deeds but by the surrounding circumstances and acts of the parties. The general uniformity of the restrictions in all the deeds, the reliance placed by the purchasers of lands on the restrictions, the plotting of the tract into building lots, the filing of a map and the actual development of the tract by the erection thereon of many dwelling houses, are all indicia of a neighborhood plan.
4. An enforceable plan must be uniform and therefore the objection is well taken as to the restrictions on the number of dwelling houses which might be erected, inasmuch as the restrictions in this respect vary from deed to deed. But this defect does not vitiate the other restrictions or the plan as a whole; the plan fails only so far as it is inequitable.
5. In holding that only that part of the plan fails which is inequitable, the court does not make a new contract for the parties; the court only refuses to enforce the contract in an inequitable manner.
6. The restrictions on every lot throughout a development need not be identical. They may vary for various sections of the tract in accordance with the design of the original grantor.
7. Whether a change of conditions in the neighborhood is a ground for refusing to enforce restrictions has been questioned. Frick v. Foley, 102 N.J. Eq. 430. But assuming that such a change is a ground for relief in this case, it must be so great as clearly to neutralize the benefits of the restrictions to the point of defeating the object and purpose of the covenants.
8. Complainants have fallen far short of showing such a change in conditions as would move the court of chancery to declare the restrictions no longer valid.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons expressed in the opinion filed in the court below by Vice-Chancellor Bigelow.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 14.
For reversal — None.