Mansfield and Morrow brought ejectment against Mrs. Phipps and her son for the recovery of a tract of land. Mrs. Phipps filed a bill setting up certain equities therein, and it was agreed that the ejectment and equity causes be tried together. The jury found for the plaintiffs in ejectment, who were the defendants in equity, in both cases, and a motion for a new trial having been' refused, Mrs. Phipps brings the case to this court for review.
1. We do not think that the plaintiff in error was hurt by the refusal to non-suit the plaintiffs ; for if their case *214was not fully made out, they went on immediately and perfected the proof.
2. So with regard to the testimony of the plaintiffs in ejectment after one of the defendants was dead; as to the locality of the land. It did not hurt- the defendant; the proof was abundant besides their evidence; and the real party, Mrs..Phipps, was living, and the party who á\eápendente lite was sworn by interrogatories before his death.
3. In respect to the charge of the court we see no error. It was to the effect that if the deed on which the plaintiffs in ejectment relied, was delivered up to be canceled provided another deed was given which should relieve them as sureties for Phipps, the county treasurer, and they were not so relieved as sureties, and the deed to them had not in fact been actually canceled, that they still could recover upon it. There seems to have been evidence to support the charge. Morrow and Mansfield were sureties on Phipps’ bond as county treasurer, he was a defaulter, he had title to this land, and he gave them a deed to it for the purpose of seeming them against his default. Subsequently the ordinary agreed to take a deed to the land and thus to release the sureties, but that failed ; and hence these sureties insisted that they had the right to consider their deed, which had not, in fact, been canceled, as good and valid. It appears equitable, and the case was on trial in equity.
4. Tr.v ground in regard to newly discovered testimony is not supported by the affidavits of counsel, and does not therefore come up to the rule of diligence.
5. We do not see how the citizens of the county were interested in the cause so as to disqualify them as jurors, and there is nothing in that ground for new trial.
6. The other grounds certified to by the judge go to the point that the verdict'is against the law, equity, evidence, and charge of the court.
The case is about this: The husband of the complainant in equity furnished the money which bought the land sued for, as she alleges, for her, but her son took title to *215himself. So she and her son swear. But the facts appear that the note was made payable to the son — that the father had this done, or was present when it was done; that the son bought the land with the proceeds of this note; that the deed was made to himself; that he gave a title to it to these sureties to secui’e them; that afterwards it was supposéd that if a deed was made to the ordinary and theirs was canceled they, the sureties, would be relieved; that a deed was so made and their deed delivered up for such conditional cancelation; that it was not in fact canceled; that they were not relieved, but had paid for Phipps large amounts, and that more was due. On these facts substantially the jury found their verdict. We think that it is not against the charge of .the court, or the law, or equity, or the evidence. The deed is free from the taint of being given to suppress the prosecution for felony, because it was evidently given to save harmless these sureties who had no power to suppress such a prosecution, neither of them being officers of the court, so far as the record discloses. The truth is that they stand as innocent purchasers, without notice of a secret equity; and in this view, eyen conceding that Mrs. Phipps is right in her facts, they will be-protected against her secret equity. The legal title was in her son; they bought from her son and took his deed without notice, or pretence of notice, that her money paid for the land. They had been forced to pay money for the son on their bond as his sureties; and the judgment against him and them was still open for a large balance, and the consideration for the land was the fact of securityship, and.that they would have to pay as sureties. Hence their equity is as high as anybody’s can be, and a court of equity will not interpose against them, especially when Mrs. Phipps’ trust in her son, and her misplaced confidence in him, have brought her into all this trouble, and more especially when her whole equity is secret,, resting entirely in parol without a scratch of a pen. to strengthen it; and without pretence even that Morrow and Mansfield knew or had heard anything about her interest.
*216The legal title was in them; upon it they sought to recover ; she carried them into equity; they stand on the footing of innocent purchasers without notice; her only equity is a secret trust unknown to them ; and equity will not relieve her. Code, §2329; 7 Ga., 530; 13 Ga., 66; 42 Ga., 95, et seq.
Judgment affirmed.