brought within one year after the rendition of the judgment sought to be reversed. The judgment in question was rendered on March 25, 1893, and the brief was not filed, nor the so-called appearance made, until 1898,more than five years after the judgment was rendered. Parties to a proceeding in error, cannot by voluntary appearance, or even by agreement, confer upon an appellate court power to hear and determine a proceeding brought after the expiration of the time limited therefor. The judgment of the court of appeals will be reversed, and the cause remanded, with directions to dismiss the proceeding in error. All the justices concurring.

(60 Kan. 660)

STATE v. GAUNTS.

(Supreme Court of Kansas. June 10, 1899.) CRIMINAL LAW-ELECTION BETWEEN OFFENSES.

A defendant, prosecuted by indictment containing a single count charging a single offense, but upon the trial of which evidence of two or more separate offenses is introduced by the state, may delay the making of a motion to compel an election as to the offense upon which a conviction will be asked until the conclusion of all the evidence in the case.

(Syllabus by the Court.)

Appeal from district court, Ottawa county; R. F. Thompson, Judge.

William Gaunts was convicted of crime, and brings error. Reversed.

J. B. Tomlinson and Mohler & Hiller, for appellant. A. A. Godard, Atty. Gen., and F. D. Boyce, for the State.

DOSTER, C. J. This is an appeal from a conviction of the offense of what is commonly designated as "statutory rape"; that is, of carnally knowing a female under 18 years of age without force, and not against her will. The prosecution was by indictment. The indictment contained but one count, and alleged the commission of the offense on the 25th day of December, 1896. The evidence on behalf of the state tended to show two offenses; one in November, the other in December, 1896. The defendant did not move the court, at the close of the evidence, for the prosecution to require the state to elect as to which of the claimed offenses it would demand a conviction, as he might have done, but introduced evidence in denial of both the imputed acts. After the evidence was all in, and when the court was about to charge the jury, the defendant moved that the state be compelled to make its election. The court overruled the motion upon the ground that it had been made at too late a stage of the trial. The overruling of this motion constitutes the principal claim of error. The complaint of the appellant is well grounded. The rule is that in indictments for felony charging a single offense the defendant can only be held to answer for a single, separate, and complete felonious act. It may develop in

no concern.

The

the course of the trial of a defendant charged with a single offense that he has been, perhaps, guilty of two or more offenses of a like kind. In such cases it is the right of the accused to demand that the state elect as to which of the claimed offenses it will require him to respond. As to the limitations upon the right of the state in such cases to give evidence of more than one offense we have State v. Stevens, 56 Kan. 720, 44 Pac. 992. The question of its right to do so is not before us. It did give such evidence in this case. At what time, then, should the defendant have exercised his right to compel an election? In a number of cases the right of the defendant to compel this election at the close of the evidence in behalf of the prosecution, and before being called upon to make his defense, has been affirmed. State v. Schweiter, 27 Kan. 500; State v. Crimmins, 31 Kan. 376, 2 Pac. 574. All the cases cited to us are cases in which the question of the defendant's right to compel an election at that time was alone involved; hence the defendant's right to compel an election at a later time has not yet been determined, so far as we know. In some of the decisions language is used from which the right to compel an election at any time before final submission to the jury might be inferred. Wash v. State, 14 Smedes & M. 120; Womack v. State, 7 Cold. 509. In Goodhue v. People, 94 Ill. 37, the motion to require an election was made at the close of all the evidence. court held that it should have been sustained, but the holding seems to have been made upon the general doctrine of the right of the defendant to limit the prosecution to a single offense. The question as to the proper time at which the motion for an election should be made was not discussed either by court or counsel. In State v. Bonsor, 49 Kan. 758, 31 Pac. 736, the motion for election was made after all the evidence had been introduced. The state made an election. The defendant then moved for the exclusion of all evidence from the jury that did not tend to directly prove the commission of the particular act relied upon for conviction. This motion was overruled. The overruling of it was held to be error. Upon principle we are constrained to believe that the defendant in this case had a right to require an election after all the evidence was introduced, and before the time for the court's charge to the jury and the argument of the case. The trial had not ended. The instructions had not been given. The arguments had not been made. The defendant had not yet finally submitted his defense to the consideration of either court or jury, and until he had done so his right to demand the elimination from the case of all matter not properly subjects of consideration remained with him. Until the court commenced the reading of its charge to the jury, he had the right to require the presentation of such law only as bore upon a single, separate offense; and until the argument in be

half of the state and in his own behalf had commenced he had the right to require that the discussion be confined to the question of his guilt of one single, separate offense. Indeed, it would seem that, so far as the state is concerned, the appropriate time for the making of an election is at the close of all the evidence. Until that time, the facts in direct proof and in defense of the charge and in rebuttal of the defendant's evidence are not all fully disclosed. At that time more than at any other the state can intelligently determine for which of the several separate criminal acts it will demand a conviction. Therefore no right of the state can be jeopardized or made more difficult of assertion by the delay of the defendant's motion. A claim of waiver of defendant's right by his delay can only be predicated upon the theory of prejudice to the state in consequence of the delay; hence, if no prejudice results, no waiver occurs. The mistake of the court below was in regarding the rule of the cases of State v. Schweiter and State v. Crimmins, supra, and other like cases, as a rule of restriction, and not of privilege. These cases do not declare a time beyond which the motion for an election may be made. They only declare that it may be made at the time stated. Some minor claims of error are made. They are not well founded. However, for the reasons given, the judgment of conviction is reversed, and a new trial ordered. All the justices concurring.

(61 Kan. 1)

TOPEKA CAPITAL CO. v. REMINGTON PAPER CO.

(Supreme Court of Kansas. June 10, 1899.) CORPORATIONS-NOTE-BUSINESS MANAGER.

The statutes of this state do not know such officers of corporations as "business managers,' nor do the courts judicially know the usage of corporations to appoint them, nor that the authority rightfully exercised by them when appointed includes the execution of promissory notes in behalf of the corporation. Hence a petition upon a promissory note, which note is signed in the name of the corporation by a person who described himself as its business manager, but which petition makes no allegation of authority in the person signing the note, does not state a cause of action.

(Syllabus by the Court.)

Error from district court, Shawnee county; Z. T. Hazen, Judge.

Action by the Remington Paper Company against the Topeka Capital Company. Judgment for plaintiff. Defendant brings error. Reversed.

T. W. Harrison, H. C. Safford, and D. R. Hite, for plaintiff in error. Quinton & Quinton, for defendant in error.

DOSTER, C. J. This was an action brought by the Remington Paper Company against the Topeka Capital Company, a corporation, upon nine promissory notes. The following, excepting as to dates and amounts, is a copy

of all the notes: "Four months after date, we promise to pay to the order of the Remington Paper Co. $800.00 (eight hundred dollars), at Topeka, Kansas. Value received,-with interest at eight per cent. per annum after date until paid. The Topeka Capital Company. Dell Keizer, B. Mgr." The defendant filed a general denial, and also the following answer of new matter: "Second. For a second and further answer and defense herein, said defendant states that said Topeka Capital Company was incorporated under the laws of Kansas on the 6th day of June, 1890, and that said company has had at all times a board of six directors, and that none of the alleged notes which purport to be set out in counts 1, 2, 3, 4, 5, 6, 7, 8, and 9 of plaintiff's petition were ever authorized by the board of directors of said company, nor by a majority of said directors, and that defendant is not indebted to plaintiff on account thereof in any sum whatever." The answer of new matter was verified in the following language: "I, T. W. Harrison, being duly sworn, say that I am the attorney for the defendant, the Topeka Capital Company; that said defendant is a corporation organized under the laws of the state of Kansas; that I have been attorney for said defendant ever since its organization, and have been one of the directors of said Topeka Capital Company ever since its organization, and am familiar with the records of said defendant; that I have read the second division of the answer filed by said defendant herein, and know the contents thereof, and that I believe the facts stated therein to be true; that said Topeka Capital Company has at all times had a board of six directors; and that none of the notes set out in plaintiff's petition was ever authorized by said board of directors, nor by a majority of them, nor by a majority of a quorum of said directors." To defendant's answer the plaintiff filed a general denial in reply. The defendant filed a motion for judgment upon the pleadings. This motion was overruled. The case was called for trial, and the court ruled that the burden of proof was upon the defendant. The defendant offered evidence in support of the allegations of its second ground of defense. The evidence was rejected. The court thereupon rendered judgment upon the pleadings in favor of the plaintiff. The defendant preserved exceptions to all these adverse rulings, and has brought the case to us for review.

The questions are: Did the petition state a cause of action? And did the defendant's second answer constitute a defense? The petition did not allege any authority in Dell Keizer as business manager or other officer of the defendant, to execute promissory notes in its name. Such being the case, the questions are easy of answer. We assume that "B. Mgr.," affixed to Keizer's name, was intended as an abbreviation of "Business Manager." A corporation can only act by some one duly authorized in its behalf. Authority

may be conferred by the law directly, or by the governing body of the corporation. Under the statutes of this state, the governing body of a corporation is the board of directors or trustees. In some instances the law confers authority directly upon certain named officers other than the board of directors. The law designates some of the officers of corporations other than the board of directors, -as, for instance, a president, secretary, treasurer, and the law implies certain powers in these specially named officers, because usage in the transaction of the business of the corporation has assigned to them specified duties, the character of which is sufficiently indicated by the titles of the positions they hold. In addition to the powers which the law may have directly conferred upon these officers, and other powers which usage allows to them, the board of directors may confer additional and special powers upon them, and assign additional and special duties to them. Besides the officers which the law allows to a corporation, and which, in a sense, may be called its statutory officers, the board of directors may provide others unknown to the law for the transaction of the business of the corporation. However, no person, other than the board of directors and the statutory oncers of the corporation, can become authorized to act for it, unless his appointment has been specially made by the board of directors. His authority to use the corporate name, and particularly to bind it by the execution of monetary obligations, must be specially conferred. The statutes of this state know no such person as the business manager of a corporation. A corporation may have a business manager, but it can have him only by special appointment of the board of directors. Not being an officer which the statute has provided for the transaction of corporate business, the law is unable, in case he has been appointed, to determine what his duties are, or whether the execution of promissory notes in the name of the corporation is one of them. In this case, no allegation having been made of the appointment of a business manager for the defendant corporation, the law cannot assume the existence of one; nor, if his existence could be assumed, could the law know what his duties were, and whether they included the execution of the notes sued upon. It is altogether likely that many corporations have an official properly designated by them as "business manager," but the usage of corporations to have such officials is not so general as to be judicially known to the courts. Much less can it be said that the courts judicially know that the power to execute promissory notes has been conferred by usage upon the business managers of such corporations as have chosen to appoint them. On the contrary, the law is that the business manager of a corporation does not have the authority to bind the corporation as maker of promissory notes unless the authority has been specifically conferred upon him. Culver

v. Leovy, 19 La. Ann. 203; Helena Nat. Bank v. Rocky Mountain Tel. Co. (Mont.) 51 Pac. 832; 4 Thomp. Corp. §§ 4847-4851. It follows from these conclusions that the law attached no presumption of authority to the act of Keizer's signature of the corporate name over that of his own and his title of business manager. His authority to do so should have been alleged. The ruling of the court rejecting the evidence offered by the defendant under its answer of new matter was doubtless made under the mistaken view that the law conferred power upon the business manager of a corporation to bind it by the execution of a promissory note. Hence the court assumed that the allegation of the answer that the board of directors had not authorized the notes in question stated no defense. This conclusion would have been correct if the premise had not been wrong. The premise, however, was wrong; and the judgment of the court below is reversed, with directions to proceed in accordance with this opinion. All the justices concurring.

(60 Kan. 606)

GILMORE et al. v. GILMORE et al. (Supreme Court of Kansas. June 10, 1899.) VENDOR AND PURCHASER-CONTRACT-CON

STRUCTION-EQUITABLE CONVERSION.

1. A written agreement between the parties examined, and held, that by its terms a sale of real estate was made presently operative.

2. Such contract works an equitable conversion of the land into personalty from the time of its execution. The purchase money becomes a part of the vendor's personal estate, and as such distributable upon his death to his widow and next of kin.

(Syllabus by the Court.)

Error from district court, Miami county; John T. Burris, Judge.

Action by J. A. Gilmore and others against L. C. Gilmore and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

The following written agreement was made: "Paola, Kansas, Feb. 19, 1892. Article of agreement entered into by and between L. C. Gilmore, agent of Ephriam Gilmore and A. Strausbaugh of Miami county, Kansas, whereby said agent has sold to A. Strausbaugh one certain tract of land now owned by E. Gilmore, and known as the southeast quarter of section 31, township 17, range 23, situated in Miami county, Kansas, consisting of 160 acres, more or less, for the sum of $5,250.00, of which $500 is to be cash in hand, and the balance in notes for the following amounts, viz.: Four notes for $500 each, one note for $750 and two notes for $1,000 each, respectively. Said first note to be dated February 22nd, 1892, and to mature March 1, 1893, and one of said notes will mature on March 1st of each year thereafter, to be payable on or before said maturity, at option of purchaser, and to draw eight per cent. interest from date.

Said deed made for said land by E. Gilmore and wife to A. Strausbaugh to be held by the National Bank of Paola in escrow, together with said mortgage and notes executed by said Strausbaugh for said land, until said notes be reduced to a total of $3,750.00, when said deed shall be delivered to said A. Strausbaugh, and said mortgage, which is also to be held by said bank, shall at the time of delivery of said deed be placed on record; during which period said Strausbaugh shall not incumber said premises in any way or manner. L. C. Gilmore, Agent for E. Gilmore. A. Strausbaugh." Pursuant to the contract, E. Gilmore and wife duly executed a deed conveying said land to Strausbaugh, and the latter and wife signed and executed the notes and mortgage provided for in the agreement, and all were deposited in escrow with the National Bank of Paola. The $500 cash payment was made by Strausbaugh, and he went into possession of the land in March, 1892. He made no further payments, except $165.38 on December 30, 1893, and $198.90 on January 4, 1894. E. Gilmore died intestate April 13, 1892, leaving several heirs, and Juliann Gilmore, his widow. John A. Gilmore and E. E. Gilmore were administrators of said estate at the time this suit was begun. Juliann Gilmore died testate December 26, 1895. June 7, 1895, she purchased from Strausbaugh and wife all the interest they had in the land, and other fractional interests from some of the heirs of her husband. Strausbaugh and wife deeded by quitclaim to Mrs. Gilmore, at once becoming her tenant under a lease to her, and paid her rent. The notes, mortgage, and deed placed in escrow with the bank were never delivered. This suit was begun June 4, 1895. The amended petition sets up the contract, notes, mortgage, and deed, and prays judgment against Anthony Strausbaugh and wife for $4,750 and interest, and that the same be decreed a first lien on the land. Judgment was rendered in the court below in accordance with the prayer of the petition.

On

Snoddy & Snoddy and Sperry Baker, for plaintiffs in error. F. M. Sheridan and J. G. Johnson, for defendants in error.

SMITH, J. (after stating the facts). It is not necessary, in determining this case, to question the rule that instruments, such as deeds, mortgages, etc., placed in escrow to await the performance of conditions precedent to delivery, do not take effect until such conditions are complied with. The agree

ment set out in the statement is a contract of sale. It expressly states that E. Gilmore has sold to A. Strausbaugh the land described, for the sum of $5,250, to be paid in the installments mentioned. It further provides that Strausbaugh shall not incumber the premises in any manner. A reasonable construction of the language employed by the parties forces the conclusion that a present sale of the prop

erty was intended. To say that the intention was to give Strausbaugh a mere option of purchase, and that he took no title, would require the rejection of language used in the contract, and a substitution therefor of words of different meaning. The contract does not contain a condition that no title shall pass to the grantee until the delivery of the deed, the language used being at variance with this construction. Upon the performance of the conditions of payment, a deed containing covenants of warranty was to be delivered to the grantee, conveying to him the legal title, whereas under the contract he was the equitable owner. Jones v. Hollister, 51 Kan. 310, 32 Pac. 1115. "It seems to be well settled that, when articles of agreement are entered into for the sale and purchase of land, the purchaser is considered the owner in equity of the land, subject to the payment of the purchase money. He is regarded as trustee of the purchase money for the vendor, and the vendor is regarded as a trustee for the purchaser of the legal title, having no interest in the land beyond the purchase money due. It does not seem necessary, to produce this effect, that any part of the purchase money should be paid. It results from the contract.” Siter's Appeal, 26 Pa. St. 178. See Miller's Adm'r v. Miller, 25 N. J. Eq. 354. The amount of the consideration to be paid was stipulated in the agreement, and Strausbaugh was to have time to pay a large portion of the same, as evidenced by the notes. The provision relating to the deferred payments secured by the mortgage was for the benefit of Strausbaugh. He could not devest himself of the equitable title conveyed by the agreement by making default in payment. He still held such title thereafter, subject to the lien of Gilmore for the purchase money. This being the state of the title, the administrators of Gilmore were proper parties plaintiff in the suit. "A contract for the sale of real estate works an equitable conversion of the land into personalty from the time when it is made, and the purchase money becomes, therefore, a part of the vendor's personal estate, and as such distributable upon his death to his widow and next of kin." Miller's Adm'r v. Miller, supra. The action of Juliann Gilmore in taking a deed from Strausbaugh after the death of her husband is not material. It merely showed her construction of the legal effect of the contract. There being a sale of the property to Strausbaugh at the date of the delivery of the contract, followed by possession, it would be inequitable for him to occupy the land, make default in payment of the notes in escrow, and then say that the grantor could not recover on the notes which evidenced the amount he was to pay. The conditions and terms of the notes and mortgage must, under the circumstances of the case, be considered as part of the contract of sale. The judgment of the district court will be affirmed. All the justices concurring.

1. A judgment, based upon conclusions of fact and law found by the district court, was reversed by this court, and the cause remanded for further proceedings in accordance with the views expressed in the opinion. The decision here was to the effect that the trial court erred in its conclusion of law adjudging invalid a chattel mortgage held by the plaintiffs in error. Held, the refusal of the trial court to enter judgment upon the mandate was not error, especially so since the application for such action was not made until after continuances of the cause over two terms of court, and the taking of depositions by both parties, and the discovery of important evidence after the receipt of the mandate, compelling a second trial on a new and different theory from the first.

2. M. & Co., chattel mortgagees, having a bona fide lien subject to two prior mortgages, which were fraudulently made to hinder and delay creditors of the mortgagor, entered into an agreement with the holders of the prior mortgages, by which the property included in each was to be replevied by M. & Co., from an officer then in possession, and turned over to said first two mortgagees, who were to sell the same, first paying M. & Co.'s mortgage, and then apply the surplus in satisfaction of their own liens. Held, that this arrangement and its execution discharged the lien of M. & Co. on the property and its proceeds under their mortgage as against creditors of the mortgagor, M. & Co. having such notice of the fraudulent character of the prior conveyances as is mentioned in the next paragraph.

3. The agreement referred to having been made after M. & Co. had been told that the two prior mortgages were fraudulent, and after the coroner was in possession of the mortgaged property under writs of attachment against the debtor. in suits where the petitions charged that the said mortgages were given without consideration, and for the purpose of hindering, delaying, and defrauding creditors, notice sufficient was conveyed to M. & Co. concerning the good faith of the prior mortgages to put them upon inquiry, thus imposing a duty which they could not neglect to perform without being chargeable with full knowledge of the fraudulent nature of said conveyances.

(Syllabus by the Court.)

Error from district court, Sherman county; Charles W. Smith, Judge.

Action by R. L. McDonald and others against W. B. Swisher. Judgment for defendant, and plaintiffs bring error. Affirmed.

Johnson, Rusk & Strongfellow, for plaintiffs in error. A. H. Ellis and F. T. Burnham, for defendant in error.

SMITH, J. This action was commenced on March 31, 1891, being a suit in replevin brought by the plaintiffs in error, who were plaintiffs below, against W. B. Swisher, then coroner of Sherman county, to recover possession of a stock of merchandise valued at $5,500. The plaintiffs below alleged ownership of the property, their claim to the same being based on a chattel mortgage showing on its face a consideration of $2,000, executed by one W. H. Daly to them on March 25, 1891, covering the goods involved in the suit.

This

mortgage was made subject to two prior mortgages, one held by the Sherman County State Bank, and another by William Bowers, for the sums of $6,834.86 and $1,050, respectively. It is admitted that the two mortgages last mentioned were given without consideration, and were fraudulent, as against creditors of Daly. In McDonald v. Swisher, 57 Kan. 205, 45 Pac. 593, that fact was held not to invalidate the mortgage now before us. When this suit was commenced, the defendant in error, Swisher, as coroner of the county, had levied on the goods in question under three writs of attachment, issued at the instance of creditors of Daly, and was in possession of the property under said writs. Said attaching creditors, standing back of the coroner, are the real parties in, interest in this replevin action.

No question is made of the good faith of the mortgage of the plaintiffs in error when originally given. The actual amount due them, however, was $1,787.68 on an account for goods sold; but the court found that the incorporation of the excess arose from want of knowledge of Daly of the exact amount of his indebtedness, and was due to no fraudulent purpose on his part. After the above-mentioned writs of attachment had been levied on the goods, and the same were in the custody of the coroner, the plaintiffs in error, through their agent, Rice McDonald, entered into a verbal agreement (afterwards, and on April 1, 1891, reduced to writing) with M. B. Tomblin, agent of the Sherman County State Bank, and William Bowers, whereby the plaintiffs below agreed to bring this replevin action in their own names to recover from Swisher the possession of the goods in suit. It was further stipulated that, upon possession being obtained by the plaintiffs below under the proceedings in replevin, they would turn the goods over to the bank and Bowers, and permit them, without molestation, to foreclose one or both of their said mortgages on the goods so delivered; and, in return for this, the bank and Bowers agreed to sell the replevied goods to the best advantage, and, after deducting expenses of sale, to satisfy, first, the claim of plaintiffs in error to the amount of $1,700, and afterwards apply the balance of the proceeds to the payment of the mortgages held by the bank and Bowers, in such manner as might be agreed upon between the parties. As soon as the plaintiffs in error obtained possession of the goods by virtue of the replevin action, the same were turned over to the bank and Bowers, pursuant to the agreement. The value of the goods at the time this action was begun was $5,500, and, as found by the court, the plaintiffs in error have realized, at least, the sum of $3,260, receiving the same through M. B. Tomblin, president of the bank, and Tomblin had control of the deposits arising from the sale of the goods. The court found that the agreement above mentioned was fraudulently and secretly made between plaintiffs in error and Tomblin and Bowers, not only to obtain possession of