SlMRALL, J. t
It is conceded that the legal title to the lands and tenements sued for was in the plaintiffs, as the heirs at law of their deceased grandfather, Brame. Although several questions arose during the progress of the trial, which it may be proper to consider, the main defense relied upon was, that the defendant “ had a title, which in equity would be regarded as superior to the legal title of the plaintiffs ” (Code 1857, 388, art. 17), and sufficient to defeat a recovery. What is a “ superior equitable title ” within the intendment and reason of the statute ?
There has been much discussion in our books as to the nature of trust estates. In considering what trust *484estates could be sold under execution (How. & Hutch. 349, § 29; Thompson v. Wheatly, 5 S. & M. 506), it was held, that a purchaser, with a title bond, if he had paid all the purchase money, had such estate as could be levied on and sold. In Wolf v. Dowell, 13 S. & M. 108-'9; Wheatly v. Thompson, 5 ib. 506; Goodwin v. Anderson, ib. 730; Dollahite v. Orne, 2 ib. 592; Brown v. Bartee, 10 ib. 268, the principie is affirmed that a purchaser at sheriff’s sale of the equity of redemption, although the entire mortgage debt has been paid off (if satisfaction has not been entered on the record of the mortgage as required by statute), acquires an equitable title, and must go into a court of equity to divest the legal title, because he cannot recover in ejectment. The rule is the same if the incumbrance is a deed in trust. They further declare, that the judgment debtor must hold the full and complete equitable legal title, and therefore the judgment creditor cannot sell under execution until complete payment of the incumbrance; nothing must be-outstanding against him, except the dry legal title in the mortgagee or trustee. In Moody v. Farr’s Lessee, 33 Miss. 210, the court affirm the doctrine that in ejectment the legal title alone is involved, and that a defendant cannot defeat the plaintiff by showing an equitable title in himself; the defendant must carry his equitable title to a court of chancery, where alone he can have the benefit of it. This judgment, however, does not in terms overturn the case of Brown v. Weast, 7 How. 184, holding that the mere “formal right ” of a trustee shall not be set up against the cestui que trust, where the trust has been fully satisfied.
In Heard v. Baird, 40 Miss. 796, 789, the cases are carefully reviewed and the conclusion reached, that the principle laid down in Brown v. Weast, 7 How. 184, which was, “that a person holding the naked legal title, the trust being satisfied, could not assert that title in an action of ejectment to recover the land from *485the cestui que trust, having the entire beneficial interest,” was incorporated in the Code of 1857, 388, art. 17, above quoted. If the “ superior equitable title,” referred to in the Code, be of the complete character as that under consideration in Brown v. Weast, much of the difficulty which surrounds this case is removed out of the way. The authorities to which reference has been made, succeeding the case of Brown v. Weast, held with uniformity and consistency to the doctrine that the plaintiff in ejectment must recover upon his legal title; and equitable title, however perfect and complete, would not avail in that action. So emphatic and distinct had been these enunciations, culminating in the case reported in 33 Miss. (already referred to), holding that the equitable title would no more prevail to defeat a recovery than it would suffice to recover upon, that the case of Brown v. Weast, 7 How. was greatly shaken, if not entirely overturned. The statute of 1857 may have been passed to give a certain rule to the extent stated in this early case, that the equitable title must be complete, nothing standing out against it except the dry legal title. The entire beneficial interest must be with the equitable owner.
Let us noAV examine the equitable right presented by the defendant, to protect his possession against the legal title of the plaintiffs.
In 1865, Susan F. King and James B. King, owning an undivided two-thirds of the premises, executed a bond to George W. Lockhart, the husband of their co-heir and sister, Leonora, obligating themselves to convey to him their interests in the land, upon payment by him of $866.66 to each of them, secured by his promissory notes. As shown upon the trial, the object of this purchase was that George W. Lockhart might sell the property to the defendant, Camfield, in exchange for a tract of land in Alabama. At the same *486time, Lockhart and Camfield entered into a contract, by which Lockhart was to convey to Camfield the land sued for, and Camfield was to convey to him the land in Alabama. Camfield went at once into- possession. The contract or title bond was signed at its date by Mrs. Lockhart, and was, or purported to he, acknowledged by her in 1870, after this suit was brought. There was testimony to the jury, that the contract of sale by Susan F. and James B. King to George W. Lockhart had been rescinded, their title bonds surrendered-, and the notes .also. When this was done was not distinctly shown, hut that it was before this suit was brought, may be inferred. Camfield had tendered to Lockhart a deed, which he declined to accept.
The equity of the defendant arises out of the bond of Lockhart and wife, when Camfield tendered a deed to Lockhart for the land in Alabama. It is manifest that the latter could not convey a legal title to Cam-field to the land in suit. Mrs. Lockhart, as co-heir with her brother and sister, owned an undivided third. The equitable interest which Lockhart acquired from Susan F. and James B. King had been surrendered by an annulment of that contract. But it was argued for the defendant that, under the circumstances, and with the knowledge that Lockhart was purchasing for the purpose of sale to Camfield, they could not, as against him, by arrangement with Lockhart, vacate that contract, he having acquired by his contract with Lock-hart an equitable assignment of his rights against them in such wise as that Lockhart could not release them from their contract; and that if so, then. Cam-field is substituted by his contract with Lockhart to all the rights which he had against Susan F. and Jas. B. King. The extent of that right was to pay to each of them the consideration money which Lockhart had agreed to pay, and compel a conveyance of their title to himself. Lockhart could not demand a deed until *487payment of the money. By no sort of arrangement or contract with Camfield could he put it in Camfield’s power to acquire their title, except upon a fulfillment of his engagement to them. If Camfield had moved in a court of equity for a specific performance of Lock-hart’s contract, it would not be insisted that James B. and Susan P. King could be required to give up their legal title until the consideration had been paid to them.
Lockhart incurred the obligation to Camfield to make to him a good legal title. He cannot perform that stipulation until he gets in the title of these two heirs, or procures it to be conveyed to Camfield. Neither of them can accomplish that until the money, the stipulated price of the land, is paid. It is not pretended that Lockhart ever tendered, or that Camfield ever offered, to pay to these heirs the consideration for their title. Yet, they were plaintiffs, and as against them Camfield sets up that he has an equity superior to their legal title. Their title is not dry and naked, standing out against a full and complete equity. No benefit or consideration has yet inured to them as reason and motive why they should convey to Camfield. They are still the beneficial owners of the property, and will continue to be so until the price shall have been paid to them.
As to two of the plaintiffs, quite surely the defendant has not such an equity as ought to prevail; and that, too, conceding (as is true) that they and Lock-hart could not rescind their contract after the former had executed a title bond to the defendant.
Did the defendant acquire an equity against Mrs. Leonora Lockhart ? There is something peculiar and out of the usual course of things in reference to her execution of the title bond to the defendant. The bond was signed and sealed by her husband and herself, in 1865, and in that form, on the 14th October, A. D. 1867, *488was filed for record and recorded. Title bonds or other written contracts in relation to lands may be recorded, if proved or acknowledged, like deeds, etc. Code, p. 310, art. 24. Deeds cannot be admitted to record unless duly acknowledged or proved by a subscribing witness. Code, p. 309, art. 19. When recorded, 14th October, 1867, the bond had not been acknowledged by Mrs. Lockhart nor proved by a subscribing witness as to her husband. It did not, therefore, acquire any of the virtues and privileges which attach to instruments authorized to be recorded.
But, on the 20th of August, 1870, the acknowledgment of Mrs. Lockhart appears to have been taken before one Tankersly, a justice of the peace.
It is insisted that the bond is not obligatory on Mrs. Lockhart because it was not acknowledged by her husband. “A husband and wife may, by their joint deed, convey the real estate of the wife, but the deed must be acknowledged,” as directed. Code, p. 307, art. 4. In the same chapter, p. 309, art. 19, the deed may be acknowledged or proved by a witness. In the chapter treating of marriages, divorces and separate property of married women, it is provided (art. 23, pp. 235-’6) : “ Nor shall the wife’s separate property be sold, conveyed or incumbered by the husband, unless the wife shall join in the conveyance and acknowledge as required,” etc. The statutes do not require that the husband shall acknowledge the deed; as to him, it might be recorded on proof by a subscribing witness.
The first instruction for the defendant was erroneous. There was nothing in the testimony tending to prove, between the parties plaintiff, or any of them, and the defendant, the relation of landlord and tenant. Cam-field entered as vendee and purchaser; his possession was in that right. There was no tenancy as lessee, express or implied; therefore a notice to surrender *489possession was not necessary. McClanahan v. Barrow, 27 Miss. 673.
But it is said by tbe defendant in error, that no injury could or did result to the plaintiffs from this statement of the law to the jury. Doubtless the same argument was advanced to the jury as has been made here: that, if the title bond conferred no right upon Camfield, then he entered and continued to hold with the consent of Lockhart and wife, and thereby established a tenancy from year to year. Such must have been the view of law entertained by the circuit judge. There being no proof of notice to quit, the effect was to cut off at once the plaintiffs’ right to recover, although their right of possession, on all other grounds, might have been complete.
As the case will be remanded for another trial, it is hardly necessary to consider the questions raised on the testimony, as all of those questions can easily be obviated on the next trial.
It may be remarked, however, that inasmuch as the title bonds had been on a former occasion produced under the notice, it was an acquiescence on the part of the plaintiffs that that was the paper meant in the notice. It would be a surprise on the other party, if the plaintiffs, having the paper, should decline to produce it on the ground that it was called in the notice a deed. The plaintiffs were not deceived or misled by the notice, but construed it as requiring the production of the title bond. The bonds used on the trial, as the record shows, were not copies from the county custodian of such records.
As to whether Mrs. Lockhart acknowledged the bond, “ separate and apart from her husband,” was a question of fact to be submitted to the jury. The certificate of the justice of the peace stands until disproved; it is prima facie true. Whether that prima facie case has been overcome or not, depends upon testi*490mony, its weight and credibility, whether or- not it satisfies the judgment and conscience of the jury. The charge of the court was, “ that the certificate of the sworn officer, required by law, is entitled to equal credit with the statement of a disinterested witness.” It has often been observed that the instructions of the court ought to have a foundation in the testimony. Their office is to lay before the jury the law ajDplicable to the facts. If the court undertakes to aid the jury in putting a proper, estimate upon the testimony, it should be so done as not to mislead. It so happened that all the witnesses who testified on this point of “ private examination ” were parties plaintiff. The justice of the peace was not permitted to impeach his own act. No disinterested witness was examined; none were present at the time of the acknowledgment. It was not possible, therefore, to produce that sort of testimony; it was of no profit to the jury in this case to tell them that the “ certificate ” was of equal credit to the statement of a disinterested witness. What would have been of value to them; and, adapted to the testimony they were to consider, by what rule or standard, if there be one, shall the evidence of interested witnesses be weighed ? The rule laid down in the Code (1857), 510, art. 190, is so just and reasonable, that although not brought forward in the last revision, must, in the nature and fitness of things, still prevail, to wit: “ The jury * * shall give such weight to the testimony of parties and interested witnesses as, in view of the situation of the witnesses, and other circumstances, it may be fairly entitled to.” Parties are competent, their testimony may be satisfactory to the jury, and conduce to conviction. If, in view of their interest and the other circumstances, the jury believe them entitled to credit, and find accordingly; if for other reasons the verdict cannot be impugned, it ought to stand.
*491Mrs. Lockhart and her brother-in-law were made competent to depose to any facts pertinent to the issue. Although the only witnesses to a particular fact, the jury might be convinced that the fact -was proved, or in other words, might believe them credible, and their statements true. It belonged exclusively to the jury to determine whether they were satisfied, from the testimony of these parties, that Mrs. Leonora Lockhart “ was not examined separate and apart from the husband; ” whether their statements were true, and not the certificate of the justice of the peace. If the proposition contained in this instruction be correct, then, if a disinterested witness swears that he was present, and no such examination was made, the jury must find in favor of the truth of the certificate; for the charge is, that the certificate of the officer is of “ equal credit with this statement of a disinterested witness.” The affirmative was upon the plaintiffs to overcome the certificate. Opposing testimony, which is only of “ equal credit,” leaves the evidence equipoised, and the plaintiff must fail. It is not true, as a proposition of law, that a jury, may not find a verdict adverse to the certificate, on the testimony of a single disinterested witness. Such a variety of circumstances and such consistency may pervade the testimony as. to compel belief. The witness may be of such integrity and character, and depose with such fairness and intelligence, that the understanding yields assent to the truth of his narrative. Belief is not a matter of volition; the mind of the candid and unprejudiced, in' obedience to its own laws, is compelled to give credence to a truth supported by sufficient testimony. In the state of the testimony before the jury, the instruction was calculated to mislead.
Judgment reversed and venire facias awarded.