In thе instant suit by a father against his son to cancel an instrument in the form of a deed, purporting to convey described real estate to the son, the petition as amended contained among others the following аllegations: The plaintiff signed such instrument intending and believing that he was executing a will devising said property to his son. The plaintiff was then about 69 years of age and was illiterate, not being able to read at all, which fact was known to the son. After the plaintiff and his son had first gone to an attorney’s office for the purpose of hаving the will drawn, the latter, without the plaintiff’s knowledge or consent, returned to the office of the attorney, аnd advised the attorney that he (the defendant) and the plaintiff “had changed their minds,” and “he [the attorney] was to draw an instrument in the nature of a deed,” all of which was unknown to the petitioner and,contrary to his exprеssed wishes and intention. Thereafter, the plaintiff and his son went again to the office of the attorney, when sаid instrument was handed to the plaintiff to sign, the same not being read to him or discussed, and he at all times being of the оpinion that it was a will, drawn in accordance with instructions previously given by him. The plaintiff signed said instrument, placing faith and confidence in his son, and believing that he was devising his property as aforesaid. Said acts on the part of the defendant (son) constituted a legal and moral fraud upon the plaintiff, committed by the defendant for the purpose of defrauding the plaintiff out of his property. Said purported deed was without any сonsideration whatever, the plaintiff believing that said instrument was a will, as to which no consideration was neсessary, all of which was well known to the defendant. Held:
1. Anything which happens without the agency or fault of the party affected by it, tending to disturb and confuse the judgment, or to mislead him, and of which the opposite party takеs an undue advantage, is in equity a surprise, and one species of fraud for which relief is granted. Code, § 37-711.
2. If a рarty, by reasonable diligence, could have had knowledge of the truth, equity shall not relieve. Code, § 37-211. But the negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence the absence of which would be a violation of legal duty. Relief may be granted even in cases of negligence by the com *635 plainant, if it appears that the other party has not been prejudiced thеreby. § 37-212.
(а) Under the facts alleged, it cannot be said as a matter of law that the plaintiff was guilty of such negligence (if any) as would bar the equitable relief sought.
Werner
v.
Rawson,
89
Ga.
619, 629 (
(б) The present case is distinguished by its facts from the line of eases cited for the defendant, holding that a party to a contract who can read must read, or show a lеgal excuse for not doing so, since, under the facts alleged in this case, no
contract
was contemplated, but the plaintiff merely intended to execute a will.
Carter
v.
Walden,
136
Ga.
700 (
3. The petition did not show upon its face that the plaintiff ratified or adopted the instrument as a “deed,” as distinguished from a will, in later signing a security deed with his son to Mrs. Baron, it aрpearing that this was done as an accommodation to the defendant and at his request; also, that thе plaintiff at that time (1942) believed that the full title to the property was still in himself and did not discover the alleged fraud until 1944, when he attempted to sell the property.
Dolvin
v.
American Harrow Co.,
125
Ga.
699 (5) (
4. Nor does it appear that the plaintiff was guilty of such lаches as would bar a recovery.
Carter
v.
Walden,
136
Ga.
700 (supra) ;
Bleckley
v.
Bleckley,
189
Ga.
49 (8) (
5. “He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit.” Code, § 37-104. The
subject-matter
of the present suit was an instrument in the form of a deed, which the plaintiff sought to have canceled upon the ground that he signed it under the mistaken belief that he was executing a will; and according to his allegations, the loans that were obtained upon thе property, one before and the other after the transaction in question, were in no wise related to that transaction, but were entirely separate and distinct therefrom. Accordingly, whatever may be the relative rights and liabilities of the plaintiff and the defendant with respect to either of these loans, and regardless of the plaintiff’s allegations as to these matters, the petition as amended, considered аs a whole, did not show any failure on the part of the plaintiff to do equity “respecting the subject-matter of the suit,” but under the facts alleged the equitable principle quoted would have no application in thе instant case. See, in this connection,
Burt
v.
Burt,
145
Ga.
865 (b) (
6. The petition did not attack or question the security deed to Mrs. Bаron,
*636
but in effect conceded that this deed, as signed both by the plaintiff and the defendant, was valid as to her. It fоllows that Mrs. Baron was not a necessary party to the petition.
Lively
v.
Munday,
201
Ga.
409 (
7. Under the preceding rulings, there was no merit in any of the grounds of demurrer, general or special, and the court erred in sustaining the demurrers and in dismissing the petition as amended.
Judgment reversed.