ran straight with the street across the railroad just north of the depot. These culverts did not carry away the water, but discharged it into the ditch on the west side of the railroad, and from there it went into my field. I was acquainted with the country prior to the time the town and railroad were built there. I first knew it fortyfive years ago. It was all open then. I moved there two years after the railroad was built. Prior to the building of the railroad, the water used to go right west straight on down to Salt branch, which is a considerable water course that goes around the town on the north side, and around to the west, and the drainage of the country was down Salt branch. The water went across the railroad, not down it. It was a sort of flat country, and then there were two basins-one above where the depot is now, and one below it. So that it had one point to discharge below where the depot is now, and one above, and in times of high water it nearly covered the whole thing in water; but the general surface is almost level. With a little slope towards Salt branch the water goes that way all right. Since the railroad has been built, the water that I have spoken of as coming down to the railroad from the town and its vicinity has flowed onto my land. It did not go down across there before the railroad was built. When there comes a rainfall of any quantity up about town, it goes straight down to the railroad. The water accumulates on the east side of the railroad near the depot, and the two culverts mentioned are not large enough to carry the water to the west side of the tract as it used to run, and the water thus accumulated discharged itself down the railroad and across my farm; coming down on each side of said railroad. along the ditches of the company. In times of considerable rain, the water gathers in large quantities, and is made to flow into the basin or depression on my land, which gets three or four feet deep. This water comes right down the railroad from the town of Rosebud, and is by means of the railroad ditches discharged into this depression on my land. Of course, there is a small portion of this water runing into the depression that comes from the west side of the railroad on my land. There is a considerable scope of country in Rosebud and its vicinity that drains down, and the water is carried through these railroad ditches onto my land, and collects in this depression west of the railway, and when the rains are heavy it ponds up against the embankment and spreads out over the bottom and ruins my crops. The openings left by the railway company where it crosses the depression are too small for the flow of water, and the water backs up and stands over the crop on the west side of the track, because it cannot escape through the openings, and it makes a pond or tank on the land. This pond or tank covers seven to

ten acres. When the railroad was first constructed, the ditch on the west side of the right of way extended along the road to Pond creek, and by means of this ditch the water was discharged into Pond creek without injury to my tract of land up to the right of way, and I made good crops thereon. Since then the railway company fenced its right of way, and has changed the ditch on the west side by the construction of a dam for a public road crossing, which has filled up the ditch below the depression and stopped the flow of water into Pond creek, and the ditch itself has been stopped up, and the water is all forced to discharge through the water gaps or culverts into my field east of the railroad. Witness then described the flow of the water and the injury to the crop and land as complained of in his petition.

"J. K. Shirley testified: My place of business is located about 225 yards east of the depot at Rosebud. The rainwater falling in the town of Rosebud flows west. I have seen the water two and a half feet deep on the main street which passes in front of my house and crosses the railroad at the depot. It would back up from the railroad embankment 150 yards up the street above my place. The water would flow toward the depot, and would cross through the two culverts there, and a part would flow down on the east side of the railroad into plaintiff's land, crossing the railroad at the stock gap, and flowing through plaintiff's field. The sewers at the depot were not sufficient to carry the water across the railroad. Of the water carried across the railroad by these sewers, a part flowed quartering towards the negro church, and a part flowed down the railroad ditch on the west side into plaintiff's field. I have seen the water running down the railroad into the field. It looked like a little river running across Taylor's farm."

In view of the following testimony of appellant, who testified in his own behalf: "When the railroad was first constructed the ditch on the west side of the right of way extended along the road to Pond creek, and by means of this ditch the water was discharged into Pond creek without injury to my tract of land up to the right of way, and I made good crops thereon. Since then the railway company fenced its right of way, and has changed the ditch on the west side by the construction of a dam for a public road crossing, which has filled up the ditch below the depression and stopped the flow of water into Pond creek, and the ditch itself has been stopped up, and the water is all forced to discharge through the water gaps or culverts into my field east of the railroad"-we think the special charge asked by appellant and given by the court, in connection with the general charge, was sufficient to properly and fully instruct the jury upon all the issues raised by the plead

ings and evidence, and therefore there was no error in the refusal of the court to give appellant's other special charges.

In appellant's ninth assignment of error, he contends that the court erred in giving defendant's special charge No. 1, to the effect that if the jury believed that, "if the plaintiff sustained any damage on account of the overflow, he would not be entitled to recover at all for any damages he might have sustained on account of overflow from Pond creek." Appellant's ground of complaint to this charge is, there was no pleading or evidence authorizing such charge. Appellant, in his petition, does not claim damages on account of overflows from Pond creek; and there is testimony tending to show that appellant's land, or a portion thereof, was overflowed from Pond creek. Appellant not being entitled to any damages on account of such overflow, it was not error for the court to give the special charge complained of.

The tenth assignment of error complains of the action of the court in giving defendant's special charge No. 2, to the effect that "the plaintiff, in law, had no right to require the defendant to construct a channel for the drainage of his land along the line of its railway or elsewhere, and that it was its duty only to construct the necessary culverts and sluices as the natural lay of the land required." The court, in this charge, substantially followed the language used in the statute, and hence there was no error in giving the same. Article 4436, Rev. St. 1895.

Appellant, in his eleventh assignment of error, contends that the court erred in giving special charge No. 3 requested by defendant, to the effect that if the jury believed that "the defendant company had constructed its railway in a proper, careful, and scientific manner, according to the natural lay and drainage of the land in question, with the necessary culverts and sluices to reasonably carry off the rainfall, they would find for the defendant," because a similar instruction had been given in the main charge, and this was giving special emphasis to this feature of the case. We do not think the court gave this specific instruction to the jury in his general charge; and as one of the principal issues in the case was as to whether appellee had constructed its railway in a proper, careful, and scientific manner, according to the natural lay and drainage of the land in question, it was not error for the court to give the charge complained of.

By his twelfth assignment of error, appellant complains of the action of the court in giving special charge No. 4 requested by the defendant, to the effect that "in no case is the plaintiff, Taylor, entitled to recover, unless he satisfies you by a preponderance of the evidence that defendant company is guilty of the negligence complained of in plaintiff's pleadings, and then only for the proportion of the damages, if any, occasion

ed by such negligence, if any." Appellant claims that the court's main charge fully covered this feature of the law, and to give this special charge gave undue prominence to this feature of the case. There being tes timony that appellant's land was sometimes overflowed by the waters from Pond creek, and appellant not being entitled to any damage caused by such overflows, if there was damage caused by waters deflected from their natural course through the negligence of defendant, in connection with the overflows from Pond creek, defendant would not be liable for more than the proportionate damage caused by its negligence. Hence, in our opinion, there was no error in the action of the court in giving the special charge complained of.

The thirteenth assignment of error complains of the action of the court below in permitting the witnesses Tom Harrell, Dick Ward, W. A. Clark, and W. W. Hunnicutt, and other witnesses in behalf of defendant, to give their opinions as to how the water would flow and affect plaintiff's land, whether there was any railroad there or not, and to state it as their opinion that the railroad had not been negligently constructed at the point in controversy, and to state that the same did not obstruct the water, or cause same to overflow plaintiff's land, because said witnesses, nor either of them, qualified as experts, and it was not shown from their testimony that they were present and saw the conditions about which they testified at the time they occurred. Appellant's contention is that the opinion of an ordinary observer or nonexpert witness is not admissible upon questions of science and skill. and also that the opinion of a nonexpert witness is not admissible upon matters of common knowledge, unless from the nature of the subject it is impossible for the witness to detail all of the pertinent facts in order to enable the jury to form a conclusion without the witness. Without here repeating the testimony of these witnesses as contained in the record, we are of opinion they showed sufficient familiarity with appellant's lands and the usual rainfalls of that section to justify the court in admitting their testimony. Railway v.. Klaus. 64 Tex. 293: Railway v. Locker, 78 Tex. 282, 14 S. W. 611; Railway v. Hepner. 83 Tex, 140, 18 S. W. 441; Railway v. Haskell, 4 Tex. Civ. App. 555, 23 S. W. 546; Railway v. Hadnot. 67 Tex. 503, 4 S. W. 138.

In his fourteenth assignment of error, appellant contends that the court erred in not granting him a new trial because the verdict of the jury is against the weight of the evidence, and against the great preponderance thereof. There is a conflict in the testimony upon the principal issue in the case, and the jury trying the case have decided such conflict against appellant, and the trial court has refused him a new trial. Under such circumstances, we do not feel authorized to

disturb such verdict and judgment. Railway v. Loeffler (Tex. Civ. App.) 59 S. W. 563; Railway v. Lee (Tex. Civ. App.) 74 S. W. 345; Railway v. Rowell (Tex. Civ. App.) 45 S. W. 763.

In his fifteenth assignment of error, appellant contends that the court below erred in refusing to grant him a new trial on the ground of newly discovered testimony. This assignment does not comply with the rules of court. It does not point out the specific error complained of, there is no proposition submitted under it, and no statement, and therefore it should not be considered by this court. However, we are inclined to the opinion that the alleged newly discovered evidence would be, to some extent, cumulative of other testimony adduced upon the trial.

There being no reversible error pointed out, the judgment of the court below is affirmed. Affirmed.

PETERS et al. v. BERKEMEIER et ux. (Supreme Court of Missouri, Division No. 1. Nov. 23, 1904.)

CANCELLATION OF DEED-SUIT BY ONE HAVING EQUITABLE TITLE-POSSESSION DEEDS-DELIVERY-NECESSITY-DELIVERY TO THIRD PER

SON.

1. Those claiming lands under the will of their father, and as his heirs, and that a recorded deed to the lands from the father had never been delivered to the grantee, can maintain a suit to cancel the deed, though not in possession.

2. To make a deed effectual, it must be delivered to the grantee, or to some person for him, so that it has passed out of the control of the grantor.

3. Where a deed is beneficial to the grantee, and is placed on record by the grantor, or some one at his direction, a delivery and acceptance are to be presumed.

4. Where a landowner delivered a deed of the land to one other than the grantee named therein, with directions to deliver it to the grantee, it constituted a good delivery, and the deed could have been lawfully delivered by the holder to the grantee, even after the grantor's death.

5. Where a landowner, without consideration. executed a deed, and delivered it to a third person to hold, but gave him no instructions to deliver it to the grantee, and after the death of the grantor the grantee procured the deed from the holder and recorded it, a decree in favor of the grantor's heirs at law in a suit to cancel the deed was proper.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Suit by Henry Peters and others against Benjamin Berkemeier and wife. From a decree in favor of complainants, defendants appeal. Affirmed.

Theo. Bruere & Son, for appellants. Chas. J. Walker and Norton, Avery & Young, for respondents.

MARSHALL, J. This is a bill in equity to cancel a deed to 160 acres of land in St. Charles county; being the west half of the

2. See Deeds, vol. 16, Cent. Dig. §§ 116, 119.

southeast quarter and the east half of the southwest quarter of section 29, township 47, range 1. The circuit court entered a decree for the plaintiffs, and the defendants appealed.

The plaintiffs are Henry Peters, Edward Peters, Katie Kessler (and her husband), Clara Painter (and her husband), Elizabeth Painter (and her husband), and Annie Bornhap (and her husband), who are children of William Peters, who died on October 28, 1896. The defendants are Benjamin Berkemeier and his wife, Mollie Berkemeier; she being the only other child of said William Peters. The plaintiffs claim that they and their sister, the defendant Mollie Berkemeier, are the owners, as tenants in common of the land, as devisees under the will of their father, and would have inherited the same if there had been no will. The petition avers that during their father's lifetime, to wit, on September 22, 1896, he and their mother caused to be prepared a warranty deed for said land to the defendant Benjamin Berkemeier, their son-in-law; that they executed and acknowledged it, and left it in the hands of the scrivener, without any directions concerning its disposition; that they never delivered the deed to said Benjamin Berkemeier, nor to any one for him; that shortly after making the deed their father died; that the deed never was delivered to Berkemeier, or to any one for him, during their father's life; that after their father's death said Benjamin Berkemeier wrongfully and unlawfully obtained possession of said deed, and caused it to be placed upon record, and now asserts title to the land. The prayer of the bill is for a decree canceling the deed. The answer denies that the plaintiffs have any interest in the land, and then pleads that William Peters, "regarding with much favor and affection" his son-in-law Benjamin Berkemeier, on May 21, 1896, conveyed the land to said Berkemeier, and duly delivered to him the deed therefor, but that after the deed was so executed and delivered it became lost or misplaced, and that, to replace said lost deed, said Peters on September 22, 1896, executed the deed here in question, and delivered it to said Berkemeier, and that it was duly recorded on December 26, 1896. The answer further alleges that at the time of the execution of the said last deed, and ever since then, said Berkemeier has been in the possession of the land. At the trial the will of said William Peters was introduced in evidence, and it showed certain specific devises, and then the residuum of the estate, real, personal, and mixed, was devised to the aforesaid children of the testator. The deed in question was also offered in evidence. It was a general warranty deed, the consideration expressed being $1 and love and affection, was dated September 22, 1896, was duly executed, and was recorded December 26, 1896, which was about 60 days after the death of William Peters, the grantor. The

only witness for the plaintiffs was C. J. Walker, who testified that on May 21, 1896, he received word that Peters wanted him to draw his will, and that he went with Dr. Talley to Peters' house and wrote his will for him; that Peters then told him to prepare a deed to Benjamin Berkemeier to the place he was then living on (being the property in controversy here); that he had no blank deed with him, so he had Peters and wife sign their names to some legal-cap paper, and took their acknowledgments to it, intending afterwards to write a deed on the paper above the signatures, and to affix his acknowledgment thereto, but that he never did so, and the paper was lost or destroyed, and he never saw it any more; that Peters never gave him any direction to deliver the paper, or the deed to be written on it, to Berkemeier, or to any one for him, or to have it recorded, and he never did so; that some time afterwards, of his own motion, he prepared the deed in question here, and took it to Peters, and he and his wife executed it on September 22, 1896, and he (Walker) took their acknowledgments to it; that Peters did not tell him what the consideration was to be, so he put in, $1 and love and affection; that Peters have him no direction to deliver it to Berkemeier, or to any one for him, or to have it recorded, and that he kept it in his possession until about two months after Peters' death, when Benjamin Berkemeier and Edward Peters came to his office, and one or the other of them-he could not remember which-told him to have it recorded, and he sent it to the recorder's office, with a memorandum, "Record, charge, and return to me." On behalf of the defendants, Dr. Talley testified: That he went with Mr. Walker to witness Peters' will, and that, after it was executed, Peters or his wifehe could not say which-asked Walker, "Did you bring along the deed to Ben and Mollie?" That Walker answered, "No; but you and your wife sign your names to this, and I will fill this out when I get back to my office, and you can get it at any time." "Ques. Who can get it? Ans. 'Ben can get it at any time.' And the old man says, "That's all right,' and we left; and that's all I know about it." That they then signed their names to the blank piece of paper, and Walker said, “I will give it to Ben the first time he comes to town," and took their acknowledgment, and they came away. William Shultz, another son-in-law (though which daughter he married does not appear) of Peters, testified that he had a conversation with Peters a few days after the execution of the deed of September 22d, and Peters told him that he had made a deed to Ben, and "Ben could take it any time he wanted to, but not have it recorded until after his death"; that the deed was "at Walker's." Ernest Sudbrock testified that Peters told him that the place was Ben's; "that nobody could take it away from him; his deed was laying at Charlie Walker's of

fice, at Wentzville." Fred Hoener testified that, a week or two after the will was made (he was a witness to the will), Peters told him "that Ben and Ed had their deed now." Ben Berkemeier testified he was in possession of the land when the first alleged deed was made, and has had possession ever since. In rebuttal, Walker testified that he had no such conversation with Peters or his wife as Dr. Talley testified to. This was all the testimony adduced in the case. The court entered a decree for the plaintiffs, and ordered the deed canceled, and the defendants appealed.

1. The defendants' first contention is that the plaintiffs, not being in possession of the land, cannot maintain this action. In support of this contention the defendants cite various decisions of this court, but seem to rely principally upon Keane v. Kyne, 66 Mo. 216, and Graves v. Ewart, 99 Mo. 13, 11 S. W. 971. Keane v. Kyne was a bill in equity to cancel a deed on the ground that it was a forgery. This court held that the charge of forgery was not proven, but that the evidence clearly showed that the deed was genuine. It was then held that, as the plaintiff was not in possession, he could not maintain the action. The result reached in that case was clearly right, and the law declared was right as far as it was stated, but it omitted one element, and that was that one in whom the legal title is vested cannot maintain a bill in equity to remove a cloud upon the title unless he is in possession, for, if he is not in possession, he having the legal title, can recover possession in an action of ejectment. Graves v. Ewart, 99 Mo. 13, 11 S. W. 971, was a bill in equity to cancel a deed made by virtue of a sale of the land in partition. Black, J., speaking for this court, said: "The question then arises whether the plaintiffs are entitled to the relief granted them. It is not alleged that the judgment was procured by fraud. There is, indeed, no proof of any fraud in that behalf, and no relief can be granted on that ground. If the plaintiffs are entitled to have that judgment and deeds set aside, it is because they constitute a cloud upon their title. The plaintiffs are not in possession, nor is the land vacant. On the contrary, it is in the adverse possession of some of the defendants. Since there is nothing on the face of the judgment to show that Benjamin F. Graves was dead. it will be taken as granted that, if the plaintiffs were in possession, they might have it and the deeds thereunder set aside on the ground that they constitute a cloud upon the title. But whatever the law may be elsewhere, it is settled in this state that a party having the legal title to the land, and being out of possession, cannot invoke equitable jurisdiction to remove the cloud on such title. This has been the steady ruling of this court for years, as will be seen by an examination of Davis v. Sloan, 95 Mo. 552, 5 S. W. 702, and the cases there cited. The

rule, however, does not apply where the plaintiff has only an equitable title, and the legal title is in the defendant. Mason v. Black, 87 Mo. 329. The rule in most of the states is thus stated by Mr. Pomeroy: 'When the estate or interest to be protected is equitable, the jurisdiction should be exercised whether the plaintiff is in or out of possession, for, under these circumstances, legal remedies are not possible; but, when the estate or interest is legal in its nature, the exercise of the jurisdiction depends upon the adequacy of the legal remedies. Thus, for example, a plaintiff out of possession, holding legal title, will be left to his remedy by ejectment, under ordinary circumstances.' 3 Pom. Eq. Jur. § 1399, note 4. In this case the plaintiffs' title is purely legal. There is no obstacle in the way of prosecuting an action of ejectment, and, being out of possession, they are not entitled to the relief granted, though entitled to it if in possession." The rule was there properly laid down "that a party having the legal title to land, and being out of possession, cannot invoke equitable jurisdiction to remove a cloud on such title.

The rule, however, does not apply where the plaintiff has only an equitable title, and the legal title is in the defendant." And the reason of the rule is very clear. If the plaintiff has the legal title, he has only to assert it to gain possession, and, if necessary, after he gets possession, he can maintain a bill in equity to clear up his title. But if the plaintiff is out of possession, and the legal title is not in him, he cannot recover in ejectment; hence, if he has any title, it must be an equitable one, and, if it is, then he is entitled to the aid of a court of equity, for otherwise he would have no relief at all. This is now the law in this state. Sneathen v. Sneathen, 104 Mo., loc. cit. 206, 16 S. W. 497, 24 Am. St. Rep. 326 (in which Keane v. Kyne was explained); McRee v. Gardner, 131 Mo., loc. cit. 606, 33 S. W. 166; Mason v. Black, 87 Mo. 329. In the case at bar the legal title is not in the plaintiffs. If they attempted to gain possession by a suit at law, in ejectment, they would fail, because the records would show the legal title to be in the defendant. Their only remedy, therefore, is in equity, for the enforcement of their equitable title. When the deed in question is canceled, they can then proceed by ejectment. If they had asked for possession as well as for a cancellation of the deed, a court of equity having cognizance of the case would have done complete justice, and would have given them a decree for possession in addition to the decree canceling the deed, but the plaintiffs did not ask for possession in this action. It follows that there was no error in the judgment of the circuit court in this regard.

2. The next contention of the defendants is that the circuit court erred in its finding of fact that the deed in question had never been delivered. To make a deed effectual,

it must be delivered to the grantee, or to some person for him, so that it has passed out of the control of the grantor. Where a deed is beneficial to the grantee, and is placed upon record by the grantor, or by some one at his direction, a delivery and acceptance will be presumed. Kane v. McCown, 55 Mo., loc. cit. 198; Kingman v. Buggy Co., 150 Mo., loc. cit. 310, 51 S. W. 727. In the case at bar the whole question as to delivery turns upon the testimony of C. J. Walker, for the testimony of Dr. Talley does not pertain at all to the deed of September 22, 1896, and relates entirely to the blank piece of paper on which Peters and his wife signed their names on May 21, 1896; and that piece of paper so signed, and never filled up, amounts to absolutely nothing by itself, and cannot be considered in determining whether the deed in question was ever delivered. There is therefore no conflict in the evidence in this case upon the subject of delivery. Walker says that Peters never told him to deliver it to Ben Berkemeier, or to any one else for him, or to have it recorded, and that he held it from its date, September 22, 1896, until two months after Peters' death, to wit, until December 26, 1896, when Ben Berkemeier and Ed Peters came to his office, and one or the other of them he cannot remember which--asked him to have it recorded, and he did so. This wholly destroys the defendants' claim of delivery. If Peters had delivered the deed to Walker with directions to deliver it to Berkemeier, that would have constituted a good delivery of the deed, and would have placed it beyond Peters' control, and it could have been lawfully delivered by Walker to Berkemeier, even after Peters' death. Crowder v. Searcy, 103 Mo. 97, 15 S. W. 346; Appleman v. Appleman, 140 Mo. 311, 41 S. W. 794, 62 Am. St. Rep. 732. But the testimony of Walker leaves no room for the application of that rule to this case, for he says positively that Peters never gave him any directions to deliver the deed to Berkemeier, or to any one for him, or to have it recorded. The testimony of the other witnesses as to conversations with Peters consists of loose statements which are too unreliable to base a decree upon. Even if the testimony of Dr. Talley as to the statement that Walker is said to have made as to the first abortive deed, to the effect that he would give it to Ben, could be made to apply to the deed in question, the delivery would not be shown, for Walker denies that any such statements were made, and the chancellor believed Walker, and there is nothing in the record to cause this court to overrule the finding of fact by the chancellor. It goes without saying that the directions of Berkemeier and of Ed Peters to Walker to have the deed recorded were worthless, and should not have been obeyed.

No delivery of the deed having been shown, and the conveyance having been