On Motion for Rehearing.
HALE, Justice.In their Motion for Rehearing, appellants say the law recognizes the right of parties to contract with relation to property as they see fit, provided they do not contravene public policy and their contracts are not otherwise illegal. They also insist that building restrictions, whether they be contained in dedication instruments or in deeds of conveyance, 'are merely matters of contract. We are in agreement with the propositions of law thus asserted, as is evidenced by our holding in the original opinion that the . 1924 restrictions constituted valid covenants running with the land conveyed under such restrictions.
However, we do not think these propositions of law support the contention of appellants to the effect that they are entitled in this suit to enforce .the attempted 1940 restrictions against the use of Lots 10 or 11 in Block 5 for hospital purposes. The 1940 restrictions did not purport to cover Lot 11 in Block 5. In fact they did not purport to cover 27 separate lots scattered throughout the original Addition and hence, in our opinion, such restrictions were neither mutual nor reciprocal in their, application to lots similarly situated, in ‘that they did not purport to subject all lots similarly situated to the same burdens amd benefits. That being true, we do not .think the 1940 restrictive instrument is valid or enforceable as an instrument of dedication, regardless of the provisions contained in the 1924 restrictions.
Furthermore, it appears to us that the 1940 restrictions are invalid and unforceable because they are violative of and in direct conflict with the 1924 restrictions in that under the 1924 restrictions all lots in Block 5 were expressly exempted from the general restriction therein contained against their use for any purpose other than residence purposes, whereas, under the 1940 restrictions such exemption, in so far as it related to Lots 2 to 10 inclusive in Block 5, was stricken down and rendered of no force or effect.
Moreover, even though E. R. Bolton, as the immediate grantor of Lot 10 in Block 5, might presently be entitled to enforce the restrictions contained in his deed dated March 8, 1946 to Crippled Children’s Association, as distinguished from an enforcement of the 1940 restrictive instrument covering the 75 lots in the Addition, we do not think appellants could enforce the covenants in that deed because they were not parties to such deed and they are not in privity with any of the immediate parties thereto.
Appellants also say the allegations in their supplemental petitions did not constitute any legal admission on their part that the 1947 amendment to the 1938 zoning ordinance of the City of Waco was passed by its governing body or that the provisions of such amendment, if passed, were valid. We recognize the general rule of law to the effect that affirmative allegations following a general denial do not ordinarily constitute binding admissions against the interest of the person making such defensive allegations. However, we fail to see why this rule of law should require a reversal of the judgment here appealed from. In their First Amended Petition appellants set forth the provisions of the 1938 zoning ordinance and alleged either directly or by necessary implication that such ordinance was in full force and effect. In their trial amendment appel-lees set forth the terms and provisions of an amending ordinance alleged to have *638been finally passed and adopted by the City of Waco on May 6, 1947, thereby pleading in effect the inapplicability of the 1938 zoning ordinance as the same had existed at the time when appellants filed their First Amended Petition. Although appellants pleaded a general denial to appel-lees’ trial amendment, they also alleged affirmatively and unconditionally in their supplemental petitions that the governing body of the City of Waco actually passed the amending zoning ordinance as pleaded by appellees, but that the amendment so adopted, was invalid for reasons and upon the grounds therein set forth. It appears to us that the issue thus drawn by the pleadings of the respective parties was not whether the amending ordinance was finally passed by the City of Waco as affirmatively alleged by both parties, but the disputed issue so drawn was whether or not the amending ordinance as passed was valid or invalid. If the amending ordinance was invalid, then it necessarily follows that the original ordinance was still in full force and effect as previously alleged in appellants’ First Amended Petition; but if the amending ordinance was valid, then the original ordinance was necessarily invalid and inapplicable by reason of matters mutually alleged by both parties to have transpired after the time when appellants had filed their First Amended Petition. Under this state of the record we think 'the burden rested upon appellants to allege facts showing the invalidity of the amending ordinance of 1947 arid as a necessary consequence thereof the continuing validity and enforcibility of the original zoning ordinance of 1938 as set forth in their First, Amended Petition. Since appellants failed to allege such facts and refused to further amend their pleadings, we do not think the trial court erred in dismissing their suit. T.J. Vol. 33, p. 643, Sec. 188; Houston & T. C. R. Co. v. Fife, 147 S.W. 1181, err. ref.; Barnes v. Central Bank & Trust Co, 153 S.W. 1172, err. ref.
Notwithstanding the able arguments of counsel to the contrary, we have again concluded that no reversible errof is shown in this cause, and therefore, appellants’ Motion for Rehearing must be and it is hereby overruled.