tion for a sum of money cannot by assignment split up such cause of action, and thereby subject the debtor to a number of suits based on such assignment.

(Syllabus by the Court.)

Error from district court, Norton county; Louis K. Pratt, Judge.

Action by Bullene, Moore, Emery & Co. and others against the German Fire Insurance Company and A. C. Lappin. Judgment, on account of which the insurance company brings error. Reversed.

The other facts fully appear in the following statement by ALLEN, J.:

On November 29, 1887, Bullene, Moore, Emery & Co. commenced this action against the German Fire Insurance Company and A. C. Lappin, as defendants, to recover $910, with interest, which they claimed as assignees of a policy of insurance issued by the insurance company to the defendant A. C. Lappin. A policy for $2,000 on a stock of goods in Lenora, Norton county, Kan., was issued by the defendant company to Mrs. A. C. Lappin on the 2d day of December, 1886. Most of the property insured was destroyed by fire on the 31st day of May, 1887. The petition alleges that on May 31, 1887, Mrs. Lappin was indebted to plaintiffs in the sum of $910 for goods sold and delivered to her, and that to pay said indebtedness she, with the written consent of said insurance company, orally assigned her right in said policy to the amount of $910 to plaintiff. On the insurance policy appears the following indorsement: "The following entry this day made on policy No. 119 of the German Fire Insurance Company of Peoria, Illinois, at Lenora, Kansas, agency, and has been copied in register, viz.: It is hereby agreed that after adjustment of loss the insurance shall be paid to the following creditors: Exchange Bank, Lenora, first preferred creditors, $300.00; Bullene, Moore, Emery & Co., second preferred, $910; Pratt & Kelly, 3d preferred, $333; Turner & Jay, $277; Barton Brothers, $180; subject, however, to all of the terms and conditions of this policy. Dated this 31st day of May, 1887. J. E. Crum, Agent." On the day when this suit was commenced separate suits were also instituted by two of the other parties named in this indorsement, in the same court, and another like suit was commenced by another party on the next day, making four separate suits in the same court, on the same policy of insurance, pending at the same time. A demurrer was filed to the petition, and sustained by the court. On May 10, 1888, an amended petition was filed, making Barton Bros., Turner & Jay, the Exchange Bank of Lenora, and Pratt & Kelly also defendants, and asking that the respective interests of all parties in the policy be determined. Thereupon, on August 6, 1888. Barton Bros., Turner & Jay, and the Exchange Bank of Lenora each filed a cross petition, alleging substantially the same facts as were stated

in the amended petition, and asking judg ment for the respective sums stated in the indorsement on the policy. The policy required proofs of loss to be made within 30 days, and also contained this provision: "It is furthermore hereby expressly provided and mutually agreed that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or chancery unless such suit or action shall be commenced within six months next after the loss for which such suit or action is brought shall occur, and, should any suit or action be com menced against this company after the ex piration of the aforesaid six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim so attempted to be enforced, and a complete bar thereto, any statute of limita tion to the contrary notwithstanding.”

When this case was called for trial a colloquy took place between the court and counsel, a part of which is stated in the record, as follows: "Ware: In the cases which now have issues made up in them, viz. Bullene, Moore, Emery & Company v German Fire Insurance Company, and William F. Dolan v. State Insurance Company, the pendency of these four suits is pleaded. For that reason it is necessary for us to know whether these latter cases are in court or out of court. Court: The answer of the insurance company in the two former cases sets up the pendency of these four other actions in bar. Ware: Yes, sir. Court: I lismiss them on motion of the court, without prejudice, and give the plaintiff an exception. Ware: Your honor, we are entided to judgment on the sustaining of our demurrer. We move for judgment, not dismissal. We don't want them dismissed. We want judgment on our demurrer. Court: Go on with this case. Ware: The German Fire Insurance Company excepts. Jones: The plaintiff excepts." The case was tried by the court, and judgments rendered as follows: In favor of Bullene, Moore, Emery & Co., $1,037.40; in favor of Barton Bros., $205.20; in favor of Exchange Bank, $372; in favor of Turner & Jay, $315.78; total, $1,930.38.

E. F. Ware, for plaintiff in error. C. D. Jones, L. H. Thompson, and Cook & Reed, for defendants in error.

ALLEN, J., (after stating the facts.) The rst question presented is whether the claims of the Exchange Bank of Lenora, Barton Bros., and Turner & Jay are barred by the limitation in the policy providing that any suit brought on it must be com menced within six months after loss. It will be observed that the parties named were not made parties to the action by the plaintiff until May 10, 1888, when the amended petition was filed, and they did not

answer until the 6th of August, 1888. Their first attempt to enforce their demands against the insurance company by means of this action was at the date of filing their answers and cross petitions herein. Toby v. Allen, 3 Kan. 399. More than a year had then expired after the date of the fire. Provisions substantially like the one contained in this policy, restricting the right to commence an action thereon to a short period after loss, have been sustained by this court. McElroy v. Insurance Co., 48 Kan. 200, 29 Pac. Rep. 478; Insurance Co. v. Stoffels, 48 Kan. 205, 29 Pac. Rep. 479. Within these authorities the cross demands of these defendants were barred by the provisions of the policy. This leaves us, then, with the plaintiff's claim alone to consider. It is contended that the policy was avoided by the taking out of other insurance in violation of the terms of the policy. The body of the policy contains the usual provision against other insurance without the consent of the company, but attached to the policy there was what is termed a "three-fourths value clause," which appears to be attached only to certain classes of policies, and contains this provision: "It is part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that in event of loss this company shall not be liable for an amount greater than threefourths of the actual value of the property covered by this policy at the time of such loss; and in case of other insurance, whether policies are concurrent or not, then for only its pro rata proportion of such threefourths value. Total insurance permitted is hereby limited to only three-fourths of the cash value of the property hereby covered, and to be concurrent herewith." We think this a consent that other insurance, not exceeding in all three-fourths of the cash value of the property, might be taken out; and within the finding of the court the total insurance appears not to have exceeded that sum.

The next question we are called on to consider is whether a cause of action can be split up and separate actions thereon maintained, as attempted to be done in this instance. It appears that the defendant company was subjected to four separate suits by different plaintiffs, each seeking to recover a portion of the policy. As originally instituted, this, and each of the other actions, were suits at law on the policy to recover separate sums. In this action, however, after a demurrer to the original petition had been sustained, the plaintiff's by amendment sought to convert their case into an equitable action, in which the rights of all of the parties to the fund might be determined, and, so far as the record discloses, the other suits were at the time this case was tried still pending. The statement made by the judge at the opening of the trial that he dismissed the other three cases on his

own motion, where such action was excepted to, not only by the insurance company, but by each of the other defendants, cannot be treated as an order of dismissal. The court was not then hearing those cases, and a mere declaration from the bench, of the kind contained in the record, would not preclude the district judge, when those cases were reached in their order, from reconsidering that statement, and from holding the cases from trial. The orders of courts disposing of cases must be proven by entries on the journal, and not by oral declarations, such as are contained in this record; and, in the absence of any statement or admission that the cases were formally dismissed, we must presume that they were still pending. It is a very general rule that a creditor cannot by assignment, or in any other manner, split up his cause of action, and thereby subject the debtor to a multiplicity of suits or conflicting demands upon him. Mandeville v. Welch, 5 Wheat. 277; Insurance Co. v. Davenport, 37 Mich. 609; Insurance Co. v. Felrath, 77 Ala. 194; Thatcher v. Insurance Co., 11 Fed. Rep. 29; Stearns v. Ins. Co., 124 Mass. 64; Whitaker v. Hawley, 30 Kan. 326, 1 Pac. Rep. 5C8. If we could say from the record brought here that this case alone was pending against the insurance company, and that all of the parties in any manner interested in the policy were before the court, so that the rights of each and all of them could be fully determined, it might be that the plaintiff's judgment could be upheld. It appears that no service has ever been obtained on Mrs. Lappin, and her right to the balance of the policy, therefore, could not be determined in this case. Pratt & Kelly disclaim any interest in the policy. In view of the fact that three other cases, commenced by the defendants in precisely the same manner that this case was commenced, were still pending in the Norton county district court at the time this case was tried, it would seem that similar amendments might have been made in each one of those three cases, and, if the plaintiff's were made defendants in one of those cases, and an answer made setting up their claim in one of those actions, within the rule above declared, their cause of action when presented by such answer would be barred by the limitation contained in the policy. Of course, each of these parties would seek to enforce their respective demands, and, as each would be barred in any other action than the one originally commenced by them, would be likely to insist on pursuing their respective remedies. As to three of these cases there is nothing in the record to indicate which has priority in point of time of commencement. It may be, also, where each sues on his own account, without making the others parties, that, inasmuch as their petitions are defective, no advantage could be gained by priority in time of commencement. We can

not in this action hold that the claims of the Exchange Bank, Barton Bros., and Turner & Jay in the actions commenced by them are barred with any greater force of reasoning than that the plaintiff's action in this case is barred, and we must hold, within the authorities cited, that the insurance company cannot be subjected to four separate suits by a splitting up of the cause of action against it, as was attempted to be done in this instance.

Counsel for defendant in error lay much stress on the point that the assignment of the policy of insurance was signed by Crum, local agent of the insurance company at Lenora, and claim that the assignment was an agreement binding the company to pay the several sums therein mentioned to the assignees. It may be conceded that Crum, for the purpose of issuing policies of insurance, and of matters connected therewith, was the general agent of the insurance company, but the record wholly fails to show that adjustment or payment of losses was within the line of his duties. While an insurance company might, of course, intrust the adjustment and payment of a loss to the same agent who issued the policy, that is not the usual mode of transacting insurance business. The settlement of losses is usually intrusted to a different class of agents, commonly styled "adjusters," and in this case the company was represented by its general agent and adjuster, Robinson, who examined into the facts connected with the loss, and took the proofs. In the absence of any evidence tending to show either that Crum had express authority to consent to this assignment, or that he had some general authority with reference to the liabilities of the company after losses had occurred, we cannot presume that he had power to bind the company by consenting to this assignment.

Various other matters are discussed in the briefs, but we deem it unnecessary to specially mention them. The judgment is reversed. All the justices concurring.

J. I. CASE THRESHING-MACH. CO. v. PETERSON et al.

(Supreme Court of Kansas. July 8, 1893.) ACTION ON NOTE-BURDEN OF PROOF-GENERAL

DENIAL.

The plaintiff sought to recover upon a promissory note, which was set out at length in the petition, and appeared to bear a specified rate of interest. The defendants' answer was a general denial, duly verified; and they claimed at the trial that the note had been altered, and that the provisions therein for interest had been added to the note, without consent, since its execution. Held, under the issues formed, that the burden was upon the plaintiff to prove the execution of the note as alleged in the petition, and that under the verified general denial the defendants were properly permitted to offer proof of the alteration. (Syllabus by the Court.)

Error to district court, Osage county; William Thomson, Judge.

Action by the J. I. Case Threshing-Machine Company, a corporation, against John Peterson and Peter Peterson, to recover on a promissory note. Judgment, on account of which plaintiff prosecutes error. Affirmed.

L. T. Wilson, for plaintiff in error. P. E. Gregory and Bradford & Huron, for defendants in error.

JOHNSTON, J. On January 28, 1888, John and Peter Peterson jointly executed a promissory note to the J. I. Case ThreshingMachine Company for $300. The note was payable January 1, 1889, and upon the face of the note upon which action is brought it appeared to bear interest at the rate of 8 per cent. per annum from date. The answer of the Petersons was a general denial, which was verified. Upon the issue thus formed the defendants were permitted to introduce testimony tending to show that the note, as executed, contained no provision for the payment of interest, but had been subsequently altered by the insertion of the figure "S" in the interest blank. The plaintiff contends that the court erred in permitting proof of an alteration of the note under the verified general denial, and insists that such denial only placed in issue the genuineness of the defendants' signature to the note, and that to avail themselves of the defense of an alteration of the note it should have been specifically pleaded, especially as the note bore no evidence of alteration or change upon its face. Under our Code the prac tice of verifying a general denial is permissible, and an answer so verified sufficiently puts in issue allegations of the due execution of written instruments, the indorsements thereon, the existence of a partnership, etc. Civil Code § 108; Association v. Barber, 35 Kan. 488, 11 Pac. Rep. 330; Hayner v. Eberhardt, 37 Kan. 308, 15 Pac. Rep. 168.

It was averred in the plaintiff's petition that the defendants executed a promissory note for a stated amount, payable at a spec ified time, and bearing a given rate of interest. Under the answer it devolved upon plaintiff to prove the execution of such a note as it had set out in its petition. This could not be done by proof of the execution of a note for $3,000, instead of for $300, nor of a note due at a time other than the one specified, nor by producing a note for a different rate of interest than was alleged. The verified denial being sufficient, it not only placed upon plaintiff the burden of proving the execution of the note as alleged, but it warranted the admission of evidence by the defendants that the note pleaded and produced in evidence, although signed by them, had been materially altered since its execution. The case of Meikel v.

a

State Sav. Institution, 36 Ind. 355, which is cited by plaintiff in error, recognizes that such proof may be offered by the defendants under a verified general denial, but holds that different rule prevails where there is a specific and affirmative allegation of alteration in the defendant's answer. It is said that the note bore no evidence of alteration upon its face, nor anything that would raise a suspicion that it had been changed since its execution. If that be true, the production of the note with the defendants' signatures attached would be prima facie evidence that the instrument, in all its provisions, was genuine; and if the defendants relied upon the defense of material alteration the burden would be shifted to them to establish the same. The indications of subsequent alterations may be so obvious and suspicious, in some cases, as to bring discredit upon the instrument, and require the party offering the same to account for the apparent changes. But, in the absence of suspicious circumstances, no presumption can be indulged against the genuineness of the instrument. Bank v. Franklin, 20 Kan. 264; Neil v. Case, 25 Kan. 510; Wilde v. Armsby, 6 Cush. 314; 2 Daniel, Neg. Inst. § 1417. We think the proof of alteration offered by the defendants was properly received in evidence, and also that no material error was committed in charging the jury. The court instructed that "the burden of proof is upon the plaintiff to prove that the note was executed as alleged in its petition;" and as the answer was verified the burden, as we have seen, was rightly placed. The special instruction requested by the plaintiff placed the burden of proof upon the defendants in the first instance, and also assumed the existence of facts not established. If it had contained the qualification hereinbefore indicated, it might properly have been given to the jury. We find no substantial error in the record, and hence there must be an affirmance of the judgment. All the justices concurring.

1. Where a witness does not reside in the county where the trial of a civil action is to be had, and his deposition is regularly taken in the county of his residence, and filed in the district court of the proper county, it is not a good objection, when the deposition is offered to be read, for the opposing party to merely state "that the witness has been in attendance upon the court, and is at present, it is believed, on his way to the place of trial."

2. Where there is a controversy between a plaintiff and defendant over a bill of sale of personal property, the plaintiff contending that he made an absolute sale of the property, and the defendant claiming that he accepted the bill of sale as a chattel mortgage or se

curity only, it is competent to show by a witness that the defendant has sold the property, or a part thereof, as his own, to support the contention of the plaintiff.

3. Where it is shown by plaintiff that a written instrument authorized to be filed for record in the office of the register of deeds has been executed and delivered to the defendant. and then subsequently filed for record by him, a certified copy thereof from the officer having the legal custody of the same, under his offcial seal, may be given in evidence by the plaintiff with the same effect as the original, because it will be presumed, in the absence of other proof, that the original is not in his possession or under his control, but is in the possession or under the control of the defendant, who is entitled to the same, and to whom it was delivered.

(Syllabus by the Court.)

Error to district court, Edwards county; J. C. Strang, Judge.

Action by B. M. Winters against Eby, Dowden & Co. on a written contract. Judgment for plaintiff. Defendants bring error. Affirmed.

The other facts fully appear in the following statement by HORTON, C. J.:

On the 18th day of November, 1887, B. M. Winters executed and delivered to Eby, Dowden & Co. the following written instrument: "Know all men by these presents, that in consideration of $600, the receipt of which is hereby acknowledged, I do grant, sell, transfer, and deliver unto Eby, Dowden & Co., their heirs and assigns, the following goods and chattels, viz. all my right, title, and interest in and to a certain one-story frame store building situated on lot No. 27, in block No. 37, in the town of Mullinville, Kiowa county, Kansas, subject to a mortgage of $300 held by Kinsley Exchange Bank, oʻ Kinsley, Kansas; to have and to hold, al and singular, the said goods and chattels forever. And the said grantor hereby cove nants with the said grantee that he is the lawful owner of said goods and chattels, and that they are free from all incumbrances except as above stated; that he has a good right to sell the same as aforesaid; and that he will warrant and defend the same against the lawful claims of all persons whomsoever. In witness whereof the said grantor has hereunto set his hand this 18th day of November, A. D. 1887. B. M. Winters. Executed in the presence of John Foran." This was filed for record on the 19th day of November, 1887, in the office of the register of deeds of Kiowa county. On the 14th day of January, 1888 B. M. Winters brought his action againsi Eby, Dowden & Co. to recover $600 and interest upon the written contract of the 18th of November, 1887. The claim of the parties to the action is, on the part of Winters, that the bill of sale or written agreement repre sented an absolute sale of the frame store building to Eby, Dowden & Co., for which they were to pay him $600. The contention of Eby, Dowden & Co. is that Winters, being indebted to them in the sum of about $866, gave the bill of sale as security only for their debt. Trial before the court with a

jury at the May term, 1889. The jury returned a verdict for Winters for $664.05, and judgment was entered accordingly. Eby, Dowden & Co. excepted to the rulings of the trial court and the judgment rendered, and bring the case here.

J. W. Rose, for plaintiffs in error. H. C. Johns and William G. Fairchild, for defendant in error.

HORTON, C. J., (after stating the facts.) It is contended that the court erred in permitting the deposition of J. W. Moyle to be read in evidence. When the deposition was offered, Eby, Dowden & Co. objected "upon the ground that the witness is at present in the county of Edwards; that he has been in attendance at the court as a witness; and that he is at present, it is believed, on his way to this place, [Kinsley.]" The court overruled the objection, and an exception was taken. The deposition was then read, and two questions were objected to,-one because it was leading, incompetent, and irrelevant, and the other solely upon the ground that it was leading. After the deposition had been read an offer was made to prove that at the time of the reading of the same the witness Moyle was present in the court room. The plaintiff admitted his presence. The trial court committed no error in permitting the deposition to be read. It was taken in Kiowa county, and shows that J. W. Moyle is a resident of that county. Of course he could not be compelled to attend for examination on the trial in Edwards county. Section 328, Civil Code. The deposition of a witness may be used in a civil action when he does not reside in a county where the trial is had. Section 346, Civil Code. When the objection was made to the deposition no affidavit was presented, showing that the witness was in the county, or that his immediate attendance at the court could be procured. After the deposition had been read the court's attention was called to the presence of the witness in the court room; but it does not appear that the plaintiff below, or the trial court, had any knowledge of his presence until after the deposition had been read. After the reading of the deposition, Eby, Dowden & Co. produced Moyle as their own witness, and thereby had the benefit of his presence and evidence before the jury. Waite v. Teeters, 36 Kan. 604, 14 Pac. Rep. 146. In the case of Fullen wider v. Ewing, 30 Kan. 15, 1 Pac. Rep. 300, the court's attention was called to the presence of the witness, who had been subpoenaed before the deposition was read.

The evidence of Moyle, that he sold to Eby, Dowden & Co. a lot, and received in payment an undivided one-half interest of the store building described in the bill of sale, tended to show that Eby, Dowden & Co. regarded the building as their own, and not one upon which they had a mortgage or lien merely.

Moyle and wife, in payment of an undivided one-half interest in the store building described in the bill of sale, executed and delivered to Eby, Dowden & Co. a deed for an undivided one-half interest in a lot in Mullinville. Objection was taken to the introduction of a certified copy thereof because it had not been shown that the original was not in the possession or under the control of Moyle or Winters; but as Moyle had delivered the deed to Eby, Dowden & Co., defendants below, it is to be presumed they had the possession thereof, and therefore that the original was not in the hands or under the control of either Moyle or Winters.

It is finally urged that the trial court committed error in instructing the jury that if Winters made an absolute sale of the mortgaged property to Eby, Dowden & Co., he was entitled to a verdict for $600, with interest. The principal controversy in the case was whether Winters sold his building, or gave the written instrument as a mortgage or security only. The jury evidently found that there was a sale. There was no conflicting evidence over the amount stated in the writing. Therefore the court committed no error in this or any other of its instructions.

The evidence is greatly conflicting, but with the finding of the jury and the approval of the trial court we cannot interfere. We have examined this case upon its merits, but it is doubtful if it is entitled to such consideration. Taylor v. Mason, 28 Kan. 381: Railway Co. v. Corser, 31 Kan. 705, 3 Pac. Rep. 569. The judgment of the district court will be affirmed. All the justices concurring.

CHICAGO, K. & N. RY. CO. v. VAN
CLEAVE.

(Supreme Court of Kansas. July 8, 1893.) EMINENT DOMAIN-RAILROAD RIGHT OF WAYLOCATION OF ROAD COMPENSATION PUBLIC LANDS-INSTRUCTIONS-REFUSAL.

1. In determining the damages of a landowner, a portion of whose land is appropriated for a right of way of a railroad. the railroad is to be regarded as one entire thing, and he is entitled to compensation for all damages directly resulting to the remainder of his land from the location and construction of the road, whether the roadbed be actually placed on that portion of the right of way taken from his land or not.

2. Where instructions are asked, based on erroneous statements, or assumptions of fact, they should be refused.

3. The act of congress of March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States," did not convey a present right of way to all railroad companies that might thereafter be organized over the public lands then be longing to the United States, but such grant took effect only on the approval of the location of the road by the secretary of the interior. 4. Where the report of the commissioners condemning the right of way for a railroad was filed before the location of the road was ap proved by the secretary of the interior, a subse