1. The renewal of the general demurrer after each amendment to the petition was sufficient to test the sufficiency of the petition as amended as against the general demurrer.
2. The ordinance providing zoning of certain areas in the City of Sandersville which failed to provide for hearing and notice of hearing to owners of property affected thereby contravenes the requirements of the due process clause of the Constitution of Georgia and is therefore unconstitutional and void.
3. Since the zoning ordinance is unconstitutional and void, Code Ann. 69-835 (Ga. L. 1946, pp. 191, 200) providing that the lawful use of a building at the time zoning regulations contrary to such use were adopted may continue with described limitations has no application to the defendant's property.
4. (a) The petition as amended failed to plead an equitable estoppel against the defendant's raising the question of the constitutionality of the zoning ordinance, because it did not allege that the defendants made any false representation or concealment of fact, or that there was any intent on the part of the defendants that the plaintiffs rely upon their conduct.
(b) The defendants would not be estopped to deny the validity of the zoning ordinance because one of them was mayor and the other a member of the city council at the time the area in which their building is located was by amendment added to the zoned area, as mere knowledge of the zoning ordinance would not show fraud or misconduct on their part.
(c) A provision in the deed under which the defendants acquired their property that they took the property "subject to any and all . . . zoning regulations" would not estop them from denying the validity of the ordinance, as estoppel by deed is maintainable only by parties to the deed or their privies, and further, the grantees in the deed would be bound only by valid ordinances.
5. An exception to and an assignment of error in the bill of exceptions to an order of the superior court "overruling all demurrers of the defendants to plaintiff's petition as thrice amended . . ." is sufficient, and the motion to dismiss the bill of exceptions is denied.
The defendants in error, R. J. Studdard and Mrs. Stella Studdard, hereafter referred to as plaintiffs, residents of the City of Sandersville, Georgia, filed an action in the Superior Court of Washington County seeking to permanently enjoin the plaintiffs in error, Clifford A. Bell and Sandersville Builders Supply Company, hereafter referred to as defendants, from converting their property formerly used for various business purposes, into a curb market to remain open seven days a week and until late hours of the night. The plaintiffs relied upon a zoning ordinance of the City of Sandersville which required that the land of the parties be used exclusively for residential purposes. The defendants filed general demurrers stating among other things that the petition failed to allege grounds for equitable relief because the city ordinance was unconstitutional in that neither it nor Section 68 of Ga. L. 1941, pp. 1692, 1730, the pertinent section of the Sandersville City Charter, provided for any hearing or notice of hearing and therefore constituted a denial of due process of the law as provided for by Art. I, Sec. I, Pars. Il and III of the Constitution of Georgia (Code 2-102, 2-103). The plaintiffs amended their petition to allege that the defendants were estopped from denying the validity of the ordinance upon several grounds which are set out in the opinion. The defendants renewed their general demurrer to the petition as thrice amended. The superior court entered judgment overruling all of the demurrers to the petition as amended. The exception is to this judgment. Plaintiffs filed a motion to dismiss the bill of exceptions.
1. Plaintiff's contention that the judgment overruling the demurrers should be sustained because the pleadings were confused and the defendant should have repleaded rather than merely renewed his demurrers is without merit. The defendants renewed their demurrers to the petition as amended after each amendment, which was sufficient.
2. The issue presents itself as to whether the zoning ordinance relied upon by the plaintiffs is unconstitutional and therefore invalid and of no effect. It is contended that the ordinance is invalid because it violates Art. I, Sec. I, Par. II (Code 2-102) of the Georgia Constitution which provides: "Protection to person and property is the paramount duty of government, and shall be impartial and complete" and Art. I, Sec. I, Par. III (Code 2-103) which provides: "No person shall be deprived of life, liberty, or property, except by due process of law," because it fails to provide for any hearing or notice of hearing and therefore permits the deprivation of property rights without due process of law. It is further contended that the ordinance is unconstitutional because Section 68 of the enabling Act, the charter of the City of Sandersville, is unconstitutional on the ground that it too is contrary to the above constitutional provisions.
Nowhere in said ordinance, a copy of which is attached as an exhibit to the original petition, does there appear any language providing for hearing and notice of hearing to the property owners affected thereby. It is clearly in contravention to the constitutional requirements of due process, Sikes v. Pierce, 212 Ga. 567 (2) (94 SE2d 427)
, Jennings v. Suggs, 180 Ga. 141 (178 SE 282)
, Robitzsch v. State, 189 Ga. 637 (7 SE2d 387)
, Southern R. Co. v. Town of Temple, 209 Ga. 722
, 724 (75 SE2d 554
), and is therefore unconstitutional and void. In view of this ruling it is not necessary to pass upon the constitutionality of Section 68 of the charter of the City of Sandersville authorizing zoning.
3. It is contended that the structural changes in the building and in the use thereof by the defendants are in violation of Code Ann. 69-835 (Ga. L. 1946, pp. 191, 200) which provides: "The lawful use of a building or structure . . . as existing and lawful at the time of the promulgation of zoning regulations, or in the case of an amendment of zoning regulations, then at the time of such amendment, may, except as hereinafter provided, be continued although such does not conform with the provisions of such regulations or amendment, and such use may be extended throughout the same building provided no structural alteration of such building is proposed or made for the purpose of such extension." But this section applies only to pre-existing nonconforming uses of property and, by definition, there can be no such use unless there is in existence a valid zoning regulation affecting the property. Since the zoning ordinance is unconstitutional and of no effect, Code Ann. 69-835 has no application.
4. (a) The next question is whether the defendants are estopped from raising the invalidity of the ordinance so that it may be enforced against them. Generally, a party is required to plead all the elements necessary to constitute estoppel in order to avail himself of the defense against an assertion of his adversary. Harris v. Abney, 208 Ga. 518 (67 SE2d 724)
. "Estoppel must be pleaded with particularity and precision, every essential fact being set forth, since nothing can be supplied by inference or intendment, it will be against and not in favor of the estoppel." 31 CJS 759-760, Estoppel, 156. This court has recognized an exception to the preceding general rule in Rieves v. Smith, 184 Ga. 657
, 664 (192 SE 372
, 112 ALR 368) in which the court states: "While 'the general rule is that estoppel, to be relied on must be pleaded,' . . . yet there are well-recognized exceptions to this general rule. Thus, since it is unnecessary under our pleading act to file a replication, 'this rule does not apply where the plaintiff relies upon estoppel in order to defeat a defense raised by the defendant in his answer,' and in such a case 'evidence in rebuttal of other evidence [of the defendant] is admissible for the [plaintiff] for the purpose of showing an estoppel, even though estoppel is not pleaded.' Brown v. Globe &c. Fire Ins. Co., 161 Ga. 849
, 854 (133 SE 260
); Wright v. McCord, 113 Ga. 881
, 883 (39 SE 510
); Davis v. Citizens-Floyd Bank & Trust Co., 37 Ga. App. 275 (4)
, 277 (139 SE 826
)." The rulings in the Rieves case supra, and those following it are concerned with pleading requirements only insofar as they are necessary for the admissibility of evidence. The situation in the present case is entirely different. It is not yet ready for trial, no answer having been filed and no question of fact having been raised. Code 81-115, 81-303. Where the petitioner relies upon the grounds of, first, the enforcement of the ordinance, and second, estoppel against the defendant from asserting the invalidity of the ordinance, and where the first ground is subject to general demurrer because of the invalidity of the ordinance, it is incumbent upon the petitioner to plead estoppel in order to effectively avoid the defense raised by the demurrer. James v. Maddox, 153 Ga. 208 (111 SE 731)
; Swofford v. Glaze, 206 Ga. 574 (57 SE2d 823)
. The essential elements of an equitable estoppel, or an estoppel in pais, are as follows as related to the party against whom the estoppel is sought: (1) conduct amounting to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts; and, as to the party claiming the estoppel: (1) lack of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially. 19 Am. Jur. 641-643, Estoppel, 42. See Harris v. Abney, 208 Ga. 518
, supra. The petition as amended clearly failed to plead an equitable estoppel against the defendants because it contained no
allegation that the defendants made any false representation or concealment of fact, or that there was any intent on the part of the defendants that the plaintiffs rely upon their conduct.
(b) The contention that the defendants are estopped to deny the validity of the zoning ordinance because Carr was serving as mayor and Bell as a member of the city council when an amendment to the original zoning ordinance was adopted adding this property to the zoned area, is without merit. Mere knowledge of the ordinance does not show fraud or other misconduct on the part of the defendants sufficient to raise an estoppel.
(c) The plaintiffs also contended that the defendants are estopped to contest the validity of the ordinance by virtue of covenant provisions in their deed to the property stating that the defendants take the land subject to all existing zoning regulations. Estoppel by deed is maintainable only in favor of the parties to the deed or their privies. Code 38-114; Lamar v. Turner, 48 Ga. 329; Atlanta Land & Loan Co. v. Haile, 106 Ga. 498, 503 (32 SE 606); Coldwell Co. v. Cowart, 138 Ga. 233 (75 SE 425); Hughes v. Cobb, 195 Ga. 213 (23 SE2d 701). A noted treatise on the subject states that, "The estoppel of a deed will be limited to actions based upon it or growing out of the transaction in which it was executed, and does not extend to a collateral action where the cause is different, while the subject matter may be the same." 2 Herman, Estoppel & Res Judicata, 714 580. See also Hughes v. Cobb, 195 Ga. 213, supra; 31 CJS 296, Estoppel, 10. It appears from the record that the plaintiffs are not parties to the deed nor were ever in privity with a party. Furthermore, no action upon the deed itself or upon any right arising out of the deed is set forth, the present action being collateral to the transaction shown by the deed.
Even if, under the most liberal construction of the pleadings, some ground for an estoppel based upon the recitals in the deed could be shown, the provision in question would mean no more than that the grantees, the defendants, would be bound only by regulations and ordinances that were valid.
5. The plaintiff's motion to dismiss the bill of exceptions on the ground that it contained no proper assignment of error is without merit. The defendants specifically except to and assign error on the "order" of the superior court "overruling all demurrers of the defendant to the plaintiff's petition as thrice amended . . . on the ground that it was contrary to law in that the court erred in overruling the general demurrers." This is sufficient. McGregor v. Third Nat. Bank, 124 Ga. 557 (3) (53 SE 93); Bennett v. Benton, 162 Ga. 139 (1) (133 SE 855); Greenwood v. Greenblatt, 173 Ga. 551 (2) (161 SE 135).
The judgment of the trial court overruling the general demurrer was error.
Judgment reversed. All the Justices concur.