The from Nelson Mason and wife to plaintiff for | lots 6, 7, and 8, dated December 1, 1881, and recorded February 14, 1882. The defendant claimed title under a proceeding to condemn the south 50 feet of the lot, and also interposed the statute of limitation. claim of title by the defendant to the portions of the lot in controversy is by a condemnation proceeding instituted by the Mississippi & Rock River Junction Railroad Company in the circuit court of Whiteside county in 1855. The validity of the judgment and proceeding therein is questioned. On the 25th day of September, 1854, said railroad company filed its petition in the circuit court, addressed to the then presiding judge of that court, asking for the appoint- | ment of commissioners to assess the damages to the lands therein named, including the part of these lots in controversy. Upon proof of notice of the application, the judge appointed commissioners, who, after being duly sworn, heard the evidence produced by the parties respectively, viewed the land, and assessed the damages sustained by the respective owners, and reported in writing to the judge of the circuit court. The report recites the order of their appointment, specifies the lands, the names of the owners of each piece, and the damages which the owner of the several parcels of land will sustain by reason of the same being appropriated to the purposes named in the petition. The report finds that George H. Wells is the owner of said lots 6 and 7, and that he will sustain $50 damages. No reference is made in the report to said lot 8, nor were any damages awarded for taking and appropriating the same. Several owners of lands, among whom is said Wells, being dissatisfied with the assessment, made application to the judge of the circuit court, as they might do under section 7 of the act incorporating the company, for a modification of the report. Certain modifications were made by the judge, and the report affirmed. Among the tracts thus presented in which the assessment was coinplained of were said lots 6 and 7, and in respect of which the following judgment was rendered: "Mississippi and Rock River Junction Railway vs. George H. Wells. It is ordered and adjudged by the court that the assessment of $50 to said Wells, for and by reason of the appropriation by said company for the use of said railroad, and for the alteration of River street, for that part of lot 6 and 7, in block 44, west of Broadway, in Sterling, the property of said Wells, which lies within fifty feet of the south line of said block, be, and is hereby approved and confirmed. Whereupon it is ordered and adjudged by the court that the said Wells have and receive of said company the said $50 damages, together with his costs in and about this suit expended, and that he have execution therefor. And the said report, as hereinabove modified, is accepted, approved, and confirmed, and it is ordered that said report, with this order modifying and accepting the same, be entered of record in the said court. The authority of the railroad company to appropriate private property for the use of the railroad is found in section 7 of the charter of that company, approved Febru * * ary 15, 1851. After giving the company power to purchase and receive and hold such real estate as might be necessary and convenient in accomplishing the purposes of its incorporation, that section provides that it may, by their agents, engineers, and surveyors, enter upon and take possession of and use all such lands and real estate as may be necessary and indispensable for the construction and maintenance of said railroad, and the appendages and accommodations requisite and appertaining thereto; but whenever any lands, real estate, or material shall be taken and appropriated by such corporation for the location and construction of said railroad or its appendages, or any work appertaining thereto, and the same may not be given or granted to said corporation, or the proprietor or proprietors do not agree with said corporation as to the amount of damages or compensation which ought to be allowed and paid therefor, or shall not mutually agree upon some person or persons to appraise the same, the damages shall be estimated and assessed in the manner following," etc. It then provides for the appointment of commissioners; the manner in which they shall discharge their duty;. that a record shall be made of their report, with the order of the court thereon, accepting or modifying the same; and that upon the payment of the damages assessed, if any are assessed, and the expenses of the assessment, the corporation shall become seised of said lands and property, and entitled to the use of the same, "for the purposes aforesaid." Sess. Laws 1851, pp. 254-258. No power is given by the charter to condemn land for a public street. The words of its charter, that the company “may, by their agents, engineers, and surveyors, enter upon and take possession of and use all such lands and real estate as may be necessary and indispensable for the construction and maintenance of such railroad, and the appendages and accommodations requisite and appertaining thereto," give power to take land for railroad purposes only. It would seem that the railroad company had determined to locate its road along River street, in the city, and, in order to furnish an equivalent to the public for the streets so taken, desired to move the street 50 feet further north, upon and along block 44, and certain blocks to the east and west thereof. The petition of the railroad company states that the parts of lots 4, 5, 6, 7, 8, and 9, in block 44, are “needed by said company for their right of way, and for the alteration of River street in said town of Sterling, being all that part of said lots lying within fifty feet of the south line of said block." And the petition asks for the appointment of commissioners "to assess such damages as the several persons above named will severally sustain by reason of the appropriation of said land belonging to the said several persons before named as above described, for the construction of the said railroad and its appendages, and for the other purposes named in said petition." In the report of the commissioners it is stated they have assessed damages "for the purposes therein specified." for a public use, but also that it is for a use that is within the particular statute under which the proceedings are had." It is true that both purposes for which the condemnation was sought were public uses, but the use for a public street was not within the statute authorizing the proceedings by the railroad company, and could not be made the basis of such proceeding. Under such a petition as is presented, the court could not condemn the whole or any part for right of way. The use for which the property was desired was not divisible. We are constrained to hold that the court acted without jurisdiction; that its judgment was unauthorized and void. In the exercise of special statutory jurisdiction, the court or judge exercising it may be regarded as an inferior tribunal, and possessing no power not specially given by the statute, and therefore irregularities in the proceeding may same author from whom we have before quoted (section 603) says: "The jurisdiction exercised in condemnation cases is always of a special character. The proceedings are to be conducted according to a certain prescribed mode. It is plain, therefore, that, even after the court or tribunal has acquired jurisdiction in the case, errors may be committed which will render the proceeding void. The jurisdiction acquired is simply a jurisdiction to proceed to final determination of the case in the mode provided by law. Any material departure from that mode will be fatal to the proceedings. ' It is apparent that the proposed condemnation was for other than railroad purposes. It was sought for the purpose of making a public street in the town of Sterling, in the place of one appropriated by the railway company for its right of way. This we are of opinion was without authority of law. The municipal authorities of the town had by its charter exclusive jurisdiction of the streets, and power to grant the company the right to lay its tracks therein, and if, in consequence of such grant or privilege, it became necessary to appropriate real estate for the purpose of widening or altering the street, the town authorities alone had power to appropriate the lands necessary therefor, by making just compensation. The railway company had power to condemn land for the uses granted in its charter, but none whatever to lay out a public street, or to change the location of one already established; nor had the circuit judge any juris-be taken advantage of collaterally. The diction or authority to lay out a street within the incorporated town, in any event; and the attempt so to do, or to take the land of the citizen therefor, was abortive and a nullity. It cannot be said that the condemnation was good for the right of way, and void for the purpose of changing the location of its street. The two purposes for which the condemnation was made are so inseparably connected in the petition, report, and judgment as not to be capable of severance. The condemnation was not for a single purpose. It was no more for the right of way of the company than for the alteration of the public street. There is nothing in the proceedings to indicate that any particular part of the land sought to be taken was for railway purposes, and another part thereof for the street sought to be laid out and substituted for River street; but the whole south 50 feet of the lots were sought to be condemned for two distinct purposes, one within the power conferred upon the company and the other not. Such a proceeding is not authorized by law, and cannot be tolerated in a summary proceeding by which the citizen is deprived of his property rights. Lewis, Em. Dom. § 600, says: "The power to force a man to give up his property against his will, and for a consideration fixed by others, is one which is in its nature harsh and against common right. According to all analogies of the law, such a power, to be effectual in its exercise, must be strictly pursued. This has been repeatedly held with respect to the power of eminent domain.' To put the court in motion and give it jurisdiction in condemnation proceedings, a petition is in general necessary, and must be in conformity with the statute granting the right of condemnation. It should set forth, by appropriate averments, all such facts as are necessary to authorize the tribunal to act. Smith v. Railroad Co., 105 Ill. 511; Bailey v. McCain, 92 Ill. 277. It is thus stated by Mr. Lewis, (section 353:) "The petition should show the use or purpose for which the property is desired, and that it is within the statutory powers conferred. It should show a clear right to condemn the property described. Accordingly, it must not only show that the property is wanted Lewis, It is undoubtedly true that an erroneous decision in a matter which the tribunal has power to decide cannot be taken advantage of collaterally, but the authority must be strictly followed, and jurisdiction to condemn property for the uses of a railroad has never been held to justify its condemnation for the purposes of a street. By the common law, in courts of inferior jurisdiction, or in any court exercising a special statutory power, the record should show affirmatively all the facts necessary to give jurisdiction, and that the proceedings have been according to law. Em. Dom. § 604; Cooley, Const. Lim. 528; Dill. Mun. Corp. § 470. As before seen, it cannot be told whether the 50 feet of lots mentioned were necessary for the right of way of the railroad and the appendages and accommodations requisite and appertaining thereto or not, or what portion was intended to be condemned for the use of a public street. The uses are inconsistent with each other. That for the use of the railroad company would be exclusive, and the public would acquire thereby no right of enjoyment of the property condemned; if condemned for a public street, the right would be in the public, to the exclusion of the railroad company. In respect of lot 8, in block 44, the report of the commissioners fails to show any assessment of damages, or any determination by the commissioners in respect thereof. That lot seems to have been overlooked, or dropped from the case. Whether this may be regarded as a finding that there were no damages to such lot, as has been sometimes held, it is not necessary to decide, for other reasons, which we think invali- | been the act of a mere trespasser, so far as date the proceedings to condemn. But, if the application for condemnation had been legal, it will be seen, from the foregoing citations from its charter, that the company was not authorized to take possession of the property, nor did it acquire any right therein before payment of the damages assessed. There is no proof that the damages assessed were paid, but it is said that payment will be presumed after the lapse of more than 20 years, and McCormick v. Evans, 33 Ill. 327, and other cases are relied upon as sustaining that view. The presumption of the payment of a debt or judgment will ordinarily be indulged after the lapse of 20 years, but we do not think such presumption obtains here. The judgment in a condemnation proceeding is not such a debt or judgment as may be collected by execution, unless possession is taken of the property condemned. Before then it bears no interest; the party condemning cannot be compelled to pay the same. He may abandon the proceeding. It is only after acceptance and possession taken that the judgment becomes absolute. If the railway company in this case had taken possession of the land, built its road thereon, and over 20 years had since elapsed, payment of the judgment might be presumed. The proceedings to condemn, however, are summary and in invitum, and in such cases no presumptions are indulged by the courts in favor of the regularity and validity of a proceeding to deprive the citizen of his property without his consent. The condemning railway company never took possession of the land, and there is no evidence in the record that it ever elected to take any part in these lots, or placed itself in a position to be called upon for the damages assessed. In Chicago v. Barbian, 80 Ill. 482, it was held that no order or judgment can be entered of binding force, on an application to condemn land for right of way, so as to confer a present right to take or damage the property before payment of the compensation found, and that all that can be done is to enter a judgment or order vesting the right to take or damage the property for the use contemplated, upon the performance of the condition precedent, of paying the compensation fixed. It was also there held that where land is condemned for a public use, and the condition of the order is not complied with within a reasonable time, by the payment of the damages and taking possession of the property, the proceeding may be regarded as abandoned, and a court of equity would inhibit any attempt to proceed under the same. In this case the court may as well presume that the company seeking to condemn abandoned its proceeding as to presume payment. The second ground of defense urged is that the right of recovery has been barred under the statute of limitations. There is no proof that the Mississippi & Rock River Junction Railway Company ever had possession of the property in question. In July, 1855, the Chicago & Galena Union Railway Company, in constructing its road, took earth for its track off of the south 50 feet of these lots. This, at most, may have shown,-a trespass on the part of the contractors in building the road. The latter company was in 1864 consolidated with appellant company. It is not claimed that said railroad or that appellant, defendant below, has or had any paper title to the land, and without such title the possession, if any, would be limited to the extent of its actual possession. The proof shows that the defendant piled railroad ties and other material on some parts of the lots, but it does not appear that such acts were done under the claim of ownership until about the time that the plaintiff purchased the property of Wells, as before stated, about which time the company fenced the land. No attempt has been made at any time to use the land for right of way or for other railroad purposes. An adverse possession sufficient to defeat the title of a true owner, in the absence of color of title, must be hostile in its inception, and continue uninterruptedly for 20 years. It is requisite that it should be of such character as to notify the true owner of an ad-' verse claim and invasion of his rights. Jackson v. Berner, 48 Ill. 203; Rockwell v. Servant, 63 Ill. 424; Tyler, Ej. cc. 48-51, and authorities collated. We have carefully considered the evidence, and think that while appellant's possession might be sufficient now, and perhaps for some years, to enable it to maintain an action against a mere intruder, it fails to show such adverse possession for the period of 20 years as will bar this action. Mere acts of trespass upon vacant and uninclosed land, not amounting to an exclusive appropriation thereof, and not made under a bona fide claim of ownership, or under circumstances indicating such a claim, do not constitute an adverse possession, within the meaning of the limitation laws. Such adverse possession cannot be inferred, but must be proved. McClellan v. Kellogg, 17 Ill. 498; Ambrose v. Raley, 58 Ill. 506. In addition to its being hostile in its inception, and its continuance uninterruptedly for the period, it must be actual, visible, and exclusive, acquired and retained under claim of title inconsistent with that of the true owner. Railroad Co. v. Houghton, 126 Ill. 239, 18 N. E. Rep. 301. We are of the opinion that the judgment of the circuit court must be affirmed. (131 Ill. 199) PUTERBAUGH V. SMITH et al.1 (Supreme Court of Illinois. Jan. 21, 1890.) NOTARY PUBLIC-CONTEMPT-JURY TRIAL. Rev. St. Ill. 1889, c. 51, § 36, which authorizes the circuit court to punish summarily, as in cases of contempt, a refusal to obey a subpoena issued by a notary public, is in conflict with Const. Ill. art. 2, § 9, which preserves trial by jury in all criminal cases, since such refusal is not a contempt of the circuit court. Appeal from circuit court, Stephenson county. Trespass for false imprisonment, brought by David Puterbaugh against Charles B. Smith, George F. Bucher, Daniel H. Snyder, and Ed. S. Waterbury. Defendants pleaded justification, by virtue of a proceeding instituted to punish plaintiff for refusing to obey a subpoena issued by a notary public. Defendants obtained judgment. Plaintiff appeals. "Horatio C. Burchard, for appellant. SCHOLFIELD. J. By the act approved May 31, 1879, amending section 36, c. 51, Rev. St. 1874, entitled "Evidence and Depositions," notaries public, and other officers therein named, who may at any time be required to take depositions in any cause pending in, any court of law or equity in this state, or by virtue of any commission issued out of any court of record in any other state, are empowered to issue subponas to compel the attendance of witnesses; and if any witness shall willfully neglect or refuse to obey such subpoena, etc., the officer issuing the same is required to at once report in writing the facts of such willful refusal or neglect, and file the same with the clerk of the circuit court of the county; and the section then proceeds thus: "And thereupon attachment shall issue out of said court against such offending witness, returnable forthwith before the circuit court of such county if in term-time, or before any judge of said court if in vacation, who shall hear and determine the matter in a summary way; and, it appearing to the court that the neglect or refusal of such witness to appear or testify, or to subscribe such deposition as aforesaid, is willful, and without lawful excuse, the court shall punish such witness by fine and imprisonment in the county jail, or by fine or imprisonment in the county jail, as the nature of the case may require, as is now, or as may hereafter be, lawful for the court to do in cases of contempt of court. Pub. Laws 1879, p. 162." Rev. St. (Ed. 1889) c. 51, § 36. Appellant was subpoenaed to attend before a notary public, and give his deposition in a case pending before a court in the state of Kansas; and he was imprisoned by the order of the judge of the circuit court of the circuit in which the deposition was attempted to be taken, made in vacation, on summary process, without the benefit of trial by jury. The pleadings present the question whether so much of the statute as assumes to authorize this is within the prohibitition of section 9, art. 2, of our constitution, which guaranties that in all criminal prosecutions the accused shall have a trial by an impartial jury of the county or district in which the offense is alleged to have been committed: and the case is therefore brought directly to this court from the trial court. We may and do concede that the mere enforcing of the authority of the court, during the progress of trials, for the speedy, orderly, and impartial administration of justice between litigants, and the enforcing of the final judgment and orders of the court after the trial according to the principles and precedents of the common law, are not within the contemplation of this provision of the constitution. But proceedings by attachment to enforce the authority of a jurisdiction different from that of the court enforcing it are unknown to the common law. Thus, Blackstone says: "The contempts that are thus [summarily] | punished are either direct, which openly insult or resist the powers of the courts, or the powers of the judges who preside there, or else consequential, which, without such gross insolence or direct opposition, plainly tend to create a universal disregard of their authority. 4 Shars. Bl. Comm. 283, 284. See, also, Hawk. P. C. bk. 1, c. 21. And so it is said in Rap. Contempts, § 13: "It is a well-settled rule that that court alone in which a contempt is committed, or whose order or authority is defied, has power to punish it, or to entertain proceedings to that end." See, also, authorities cited in note 3 on same page. Hawes, Jur. § 223. Where a person refuses to appear before a notary public and give his deposition, in obedience to a subpœna issued by him, it may be truly said that he acts in contempt of the authority of the notary; but how can it be said that he thereby acts in contempt of the circuit court, or of the judge of that court. He owed by reason of the source of the subpœna no duty to the circuit court, or to the judge thereof. As to the circuit court and its judge, his failure to obey the subpœna simply placed him in the same situation as all other willful violators of the law. No one would pretend that it is competent for the general assembly to enact that the crimes and misdemeanors enumerated in the Criminal Code shall hereafter be contempts of court, and summarily punished as such, and thus deny to the parties accused the right of trial by jury. And this for the plain reason that the general assembly cannot deny to individuals the guarantied rights of the constitution by simply changing the names of things. It cannot make that punishable as a contempt which, in the nature of things, cannot be a contempt of the authority imposing the punishment. In the instances supra, where we concede the right to exist to proceed summarily for contempt, it is manifest the right is indispensable to the execution of the functions of the court; for, if every coercive step must be preceded by a jury trial, it is manifest that a party, by the simple repetition of disobedience or resistance, might render trials interminable. Johnston v. Commissioners, 1 Bibb. 602. But where an individual is being proceeded against in one tribunal for an act done in the presence, and in derogation of the authority, of a different tribunal, the ability of the trial tribunal to exercise its proper functions is not involved. The act charged has no tendency to hinder or delay it in the lawful execution of its authority. It takes no notice as of its own knowledge of anything connected with the offense charged, but everything must be proved as in any other criminal case. We held in Storey v. People, 79 Ill. 45, that the publication of a libel not directly calculated to hinder, obstruct, or delay courts in the exercise of their proper functions could not be treated and punished summarily as a contempt of court. And the principle here requires that we shall hold that that which is not an obstruction of the exercises of the functions of a court in conducting trials before it, or in enforcing its process, shall not be punishable, as a contempt of court, summarily, and without trial by jury. Wherever there is a criminal prosecution, (and that is always the case where the proceeding is an original one, to have a party punished for the violation of a statute,) the defendant is entitled, under the constitution, to a jury trial. So much of the present statute, therefore, as authorizes the circuit judge to proceed summarily, and without a jury, being contrary to the constitution, is void, and not law. The judgment is reversed, and the cause remanded for further proceedings in conformity with this opinion. (131 Ill. 171) KINGMAN V. HARMON et al.1 (Supreme Court of Illinois. Jan. 21, 1890.) WILLS-VESTING OF ESTATE-GUARDIAN AND WARD -ESTOPPEL-FORECLOSUre Decree. 1. Under a will by which the testator directs that his land "be reserved for his children, and be equally divided among them when the youngest attains the age of 21 years," and devises the land to his executors in trust during the minority of his children, title does not vest in the children until the youngest becomes 21 years old. 2. A mortgage of such land by the children's guardian during their minority passes no title, though made under the direction of the county court. 3. An attorney who, after advising his clients that they have power to mortgage certain land to which their title has not vested, receives part of the money obtained by such mortgage for his fees, and after the title has vested buys the land from his clients, is not thereby estopped from denying the validity of the mortgage. 4. In a suit to foreclose a mortgage on land which has been sold since the mortgage, the court cannot direct that money due on such sale be applied in payment of the mortgage debt. Appeal from appellate court, second district. * * consider this question, nor is it necessary to review the evidence, and pass upon the conduct of the guardian in the management of the money and property which came into his hands belonging to the wards, as there is another question behind both of these, upon which the decision of the case, in our opinion, must rest, and that is whether William and Mary Boylan were seised of the mortgaged premises when the mortgages were executed. If they were not, the mortgages would confer no right or title upon the complainant. William and Mary Boylan derived their title, whatever it was, fron, the will of William Boylan, their father. In the second clause of the will the testator declared that his lands "be reserved for his children, and be equally divided among them when the youngest attains the age of twenty-one years, and that the proceeds of said property until that time be placed at the disposal of the executors for the support of his wife, and the support and education of the children. Under this clause of the will, it is plain that the land of William Boylan, consisting of a farm, was placed in the hands of his executors, the proceeds or rents to be used by them for the support of his family and the education of his children, until the youngest child should attain the age of 21, when there should be a division of the lands among the children. Upon looking into the lan, the youngest child, did not attain the evidence, it will be found that Mary Boyage of 21 years until June 30, 1888, while the mortgages were executed, one in 1880 and the other in 1881. If the title to the lands vested in the children upon the death of William Boylan, then the mortgages might become liens; if, on the other hand, the devise was contingent, no preceding Bill by Matthew Kingman against Patrick Harmon, William Boylan, Mary Boy-estate having been created in the proper lan, Maria Boylan, Josiah Cratty, Mary Hays, and Roswell Bills, to foreclose two mortgages executed by Maria Boylan and by Patrick Harmon, as guardian of William and Mary Boylan. Decree for defendants affirmed by the appellate court. Complainant appeals. William S. Kellogg and James A. Cameron, for appellant. Sheen & Lovett, for appellees Hays and Cratty. M. C. Quinn, for appellee Bills. CRAIG, J. It is apparent from the record that Matthew Kingman, in making the loans to Patrick Harmon, and in taking the two mortgages to secure the loans, acted in perfect good faith. So far as appears, he had no knowledge that the guardian of William and Mary Boylan was mismanaging or squandering the moneys belonging to his wards, and, if there was any way in which he could recover the money loaned without doing violence to the rights of others, he ought, in equity and good conscience, to do so. It has been claimed in the argument that the orders or decrees of the county court authorizing the guardian to make the loans and mortgage the lands ought to be a protection to the complainant. We shall not stop to 1 Reported by Louis Boisot, Jr., of the Chicago bar. ty, the property devised not to become vested until the youngest child attains the age of 21 years, it is plain that the two wards of Patrick Harmon at the time the mortgages were executed had no title to the property subject to mortgage. 1Jarm. Wills, 734. in speaking upon this subject, says: "Thus, where a testator devises lands to trustees until A. shall attain the age of twenty-one years, and if or when he shall attain that age, then to him in fee, this is construed as conferring on A. a vested estate in fee-simple, subject to the prior chattel interest given to the trustees, and consequently, on A.'s death under the prescribed age, the property descends to his heir at law; though it is quite clear that a devise to A., if or when he shall attain the age of twenty-one years, standing isolated and detached from the context, would confer a contingent interest only." What was said by Jarman was quoted with approval in Loan Co. v. Bonner, 75 Ill. 315. In 2 Williams, Ex'rs, (3d Amer. Ed.) 1049, the author, in the discussion of the question under consideration, says: "If a legacy be given generally, without specifying the time when it is to be paid, it is due on the day of the death of the testator, though not payable till the end of a year next after the testator's death. This delay is merely an allowance of time for the convenience of the executor, and does not prevent the interest vest |