Opinion
15898.
SEPTEMBER 6, 1947.
Equitable petition. Before Judge G. C. Anderson. Richmond Superior Court. May 5, 1947.
Harris, Chance McCracken, for plaintiff.
Isaac S. Peebles, for defendant.
In the 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 allegations: 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 having the will drawn, the latter, without the plaintiff's knowledge or consent, returned to the office of the attorney, and 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 expressed wishes and intention. Thereafter, the plaintiff and his son went again to the office of the attorney, when said 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 opinion 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 consideration whatever, the plaintiff believing that said instrument was a will, as to which no consideration was necessary, 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 takes an undue advantage, is in equity a surprise, and one species of fraud for which relief is granted. Code, § 37-711.
2. If a party, 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 complainant, if it appears that the other party has not been prejudiced thereby. § 37-212.
( a) 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 ( 15 S.E. 813); Dollar v. Fred W. Amend Co., 184 Ga. 432 ( 191 S.E. 696).
( b) The present case is distinguished by its facts from the line of cases cited for the defendant, holding that a party to a contract who can read must read, or show a legal 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 ( 71 S.E. 1047). It also appears in this case that the plaintiff was illiterate; and, considering all that is alleged, it could not properly be determined by the court on demurrer that the plaintiff was guilty of negligence amounting to a "violation of legal duty" (Code, § 37-212, supra), in assuming that the will had been drawn in accordance with his instructions. Compare Morris v. Morris, 41 Ga. 271; Harden v. Weaver, 184 Ga. 652 ( 192 S.E. 384).
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 appearing that this was done as an accommodation to the defendant and at his request; also, that the 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) ( 54 S.E. 706, 28 L.R.A. (N.S.) 785).
4. Nor does it appear that the plaintiff was guilty of such laches as would bar a recovery. Carter v. Walden, 136 Ga. 700 (supra); Bleckley v. Bleckley, 189 Ga. 49 (8) ( 5 S.E.2d 206).
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 the 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 as 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 the instant case. See, in this connection, Burt v. Burt, 145 Ga. 865 (b) ( 90 S.E. 73); Information Buying Co. v. Miller. 173 Ga. 786 (2) ( 161 S.E. 617); Atlanta Association of Fire Insurance Agents v. McDonald, 181 Ga. 105 (2) ( 181 S.E. 822); Deen v. Baxley State Bank, 192 Ga. 300 (2a) ( 15 S.E.2d 194).
6. The petition did not attack or question the security deed to Mrs. Baron, but in effect conceded that this deed, as signed both by the plaintiff and the defendant, was valid as to her. It follows that Mrs. Baron was not a necessary party to the petition. Lively v. Munday, 201 Ga. 409 ( 40 S.E.2d 62).
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. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.
No. 15898. SEPTEMBER 6, 1947.
The exception is to a judgment dismissing the petition on the general and special demurrers.
On February 6, 1947, Louis I. Jackson filed a suit in equity against his son, Otis Jackson, seeking cancellation of an instrument in the form of a deed, and praying also for other equitable relief. The petition before amendment alleged substantially the following:
During the first week of April, 1941, the plaintiff decided that he would make a will, devising to his son, the defendant, a described tract of land situated in Richmond County, Georgia; and after advising with his son that he intended to devise by will said property to said son, he and said son during the first week in April, 1941, went to the office of Sam F. Garlington, a practicing attorney in the City of Augusta, and the plaintiff and said son requested the said Sam F. Garlington to draw up a will devising said property of petitioner to said son. The plaintiff and his said son were to return to said office a few days later, and the plaintiff was to execute said will, but before he had an opportunity to return, the defendant went to the office of said Garlington and advised him that the plaintiff and said son had changed their minds, and, instead of drawing a will, he was to draw an instrument in the nature of a deed, all of this being unknown to the plaintiff and contrary to his expressed wishes and intention, a copy of the purported deed being attached as an exhibit to the petition. The plaintiff is 75 years of age and illiterate, not being able to read at all, and on April 11, 1941, he and his son went to the office of said Garlington, and said instrument was handed to the plaintiff to sign, said instrument not being read to him or discussed, and he at all times being of the opinion that the said instrument was a will and drawn in accordance with the instructions previously given by him. The plaintiff signed said instrument, placing faith and confidence in the defendant, his son, and believing that he was devising said property by will to his son, said son knowing that the plaintiff could not read. Said acts on the part of the defendant constituted a legal and moral fraud upon the plaintiff, and said purported deed from its inception is the result of the fraudulent acts of the defendant with the purpose of defrauding the plaintiff out of his property. Said purported deed was without any consideration whatsoever; and the plaintiff believing that said instrument was a will, no consideration was necessary, and no consideration was ever paid to him, nor was any to be paid to him, all of which was well known to the defendant.
Wherefore, the plaintiff prayed: (a) that title to said property be declared in him; (b) that said deed be ordered surrendered up by the defendant, and (c) be canceled and nullified; (d) for general relief; and (e) for process.
The copy of the deed attached to the petition contained the following recital after a description of the property: "This deed is made subject to a security deed to the Federal Land Bank of Columbia, which said party assumes and agrees to pay off."
To the foregoing petition the defendant filed a general and special demurrer. Thereafter the plaintiff offered two amendments to his petition, both of which were allowed.
The first amendment was substantially as follows:
1A. The plaintiff alleges that in February, 1942, the defendant approached him and requested that he secure a loan on said property in question from Mrs. Rose S. Baron, and that the money to be secured from Mrs. Baron would be used to pay off the Land Bank Commissioner, and the balance of $300 was to be taken and used by the defendant. The plaintiff shows that he agreed to accommodate his son and make said loan from Mrs. Baron; at all times believing that full title to the property was in the plaintiff; and therefore placing the utmost confidence and faith in his son and never having been apprised of the fraud that his son had perpetrated upon him, the plaintiff went to the office of the said Mrs. Rose S. Baron at the request of the defendant, the arrangements having been made with Mrs. Baron by the defendant; and on March 3, 1942, the plaintiff executed a security deed on said property to said Mrs. Baron, secured said $700, paid the Land Bank Commissioner the balance due on that security deed, and the defendant kept the balance.
Said money was obtained from said Mrs. Rose S. Baron, and the security deed is not under attack or questioned by the plaintiff, the full amount of the loan bargained for having been paid by said Mrs. Baron.
The plaintiff alleges that, if he had dreamed that the defendant had perpetrated the fraud upon him that was perpetrated in April, 1941, the plaintiff would never have made said loan from Mrs. Baron, and it was not until March, 1944, when he attempted to sell his property, that he discovered the fraud that his son had perpetrated upon him by slipping to Garlington's office, without the plaintiff's knowledge or consent, and advising Garlington that the plaintiff and the defendant had changed their minds and wanted an instrument in the nature of a deed instead of a will; and the plaintiff signed said instrument on April 11, 1941, having the utmost faith and confidence in his son, he being an old man 75 years of age, almost blind and unable to read.
The second amendment alleged:
1. On April 13, 1934, the plaintiff borrowed from the Land Bank Commissioner $700 on the property in question, executed a security deed in favor of said Land Bank Commissioner, used $400 of said money to pay off $400 that he owed on a described dwelling in the City of Augusta, and paid the remaining $300 over to the defendant, the loan from the Land Bank Commissioner having been made at the special instance and request of the defendant.
2. The plaintiff paid $300 principal and the interest in addition on said loan to said Land Bank Commissioner out of his pocket, and the remaining portion of said loan was paid by money obtained from a loan on March 3, 1942, from Mrs. Rose S. Baron, $400 being the balance due said commissioner, and the balance of the $700 obtained from Mrs. Baron was kept by the defendant and appropriated to his own use, the same as the $300 obtained from the Land Bank Commissioner was appropriated to the defendant's own use. The plaintiff stands ready and willing to pay $100 on the indebtedness due Mrs. Rose S. Baron, or to pay said sum into the registry of the court to be used for that purpose, provided the remaining indebtedness of $288 due Mrs. Baron is paid by the defendant; or the plaintiff is willing to pay $100 on the $288, provided the defendant pays $188.
3. The defendant never paid so much as one copper on the indebtedness due said Land Bank Commissioner until the new loan was made with Mrs. Rose S. Baron, of which the plaintiff was a cosigner along with the defendant of a security deed in favor of said Mrs. Baron.
4. The plaintiff further alleges that he did not discover that the defendant had perpetrated a fraud upon him until March, 1944. At that time the plaintiff stated to the defendant that he thought he would sell the property in question, and was then advised, and discovered for the first time that he had signed a deed; the defendant telling him that he couldn't sell the property, as the paper signed in Garlington's office was a deed and the defendant had had it placed on record. Immediately upon the discovery that the defendant had perpetrated a fraud upon him and had misled him into signing a deed, well knowing that the plaintiff thought he was signing a will, the plaintiff went to his attorneys in an effort to have the fraud and misdeeds of the defendant corrected.
The defendant renewed his original demurrer, and interposed additional grounds of demurrer to the petition as amended. The original demurrer was substantially as follows:
1. The petition sets forth no cause of action.
2. It affirmatively appears from the copy of the deed attached to the petition that the defendant assumed and agreed to pay off a security deed to the Federal Land Bank of Columbia, and the petition fails to allege whether or not the defendant paid off such security deed or any part of it.
3. The plaintiff makes no offer to restore the defendant to his original status, in that the petition contains no offer to pay the defendant any sum or sums paid by the latter upon said debt.
4. (Substantially the same as 3. next above.)
5. It appears from the petition that, when the deed was presented to the plaintiff in the office of the attorney named, he executed the same without having it read to him, and it is not alleged there was any misrepresentation as to what the deed purported to be. Also the plaintiff has been guilty of laches, the deed having been signed on April 11, 1941.
6. The petition does not allege when the plaintiff discovered that the said instrument was a deed, nor does it allege that he made any effort to disaffirm the said deed or to relieve this defendant of the obligations that this defendant had assumed under said deed, with reference to said debt on said property.
7. No copy of the security deed to the Federal Land Bank is set forth or attached, nor is the date of such security deed given, nor does the petition allege either the amount of the original debt or the amount that was due thereon when the defendant assumed the obligation to pay same.
8. It does not appear that the plaintiff has done equity or offered to do equity in reference to the sums paid by the defendant.
The "additional grounds" of the demurrer to the petition as amended were:
1. Paragraph 4 of the second amendment shows that the plaintiff has been guilty of laches, and under paragraph 3 of said amendment it appears that the plaintiff ratified "said deed to the defendant," in that, when he joined with the defendant in signing the security deed to Mrs. Baron, he thereby recognized that the title to the property was in himself and the defendant. Accordingly, it affirmatively appears that the plaintiff owned a life estate and the defendant the remainder estate in said property, the plaintiff having recognized that it was necessary for both of them to sign said security deed to Mrs. Baron; and having executed such security deed to her, he ratified the deed to the defendant.
2. Since it appears from the petition that Mrs. Baron has title to the land under such security deed, she is a necessary party to this suit, and it cannot be maintained without her being made a party thereto.