ment of a trustee to carry out and execute the trusts created by the will; that it be determined whether said Masters has anything beyond a beneficial interest in or right to the rents and profits of the land; also whether he has not forfeited any right, title or interest to the further enjoyment of the land; whether he is entitled to notice, as provided in the sixth clause of the will, of his failure to pay taxes, keep the hedges properly trimmed and all buildings on the land in ordinary repair; whether the contract or agreement with Dunlap amounts, in equity, to a conveyance of Masters' interest, and whether, by reason of the premises set forth in the bill, complainants are entitled to the present use, enjoyment and possession of the real estate. The bill prays that the legal title be declared to be in trustees to be appointed by the court, and that the incumbrance of the beneficial interest of William Robert Thomas Masters be declared void; that Dunlap be restrained from further enjoying the rents and profits arising from the land and from exercising any rights over it by virtue of said written instrument; that he be required to account to complainants for the rents and income from the land and deliver up possession of the premises in order that the intention of the testator be carried out, and that complainants be declared to be the owners of the land according to the terms and provisions of the will of James M. Masters. By an amendment to the bill it was alleged that William Robert Thomas Masters had not paid the taxes on said land, had not kept the buildings and improvements in ordinary repair, as he was required to do by the terms of the will as conditions upon which he was to enjoy the use, rents and profits from said land.

Appellants contend that it was the intention of the testator that the title to the land should vest in the trustee, to be held by him for the use of the cestui que trust; that it was the intention of the testator to create a spendthrift trust for the benefit of William Robert Thomas Masters,

and that the Statute of Uses does not apply. The argument in support of the contention that the trust was a spendthrift trust is based upon the provision of clause 6 of the will, that the land shall not be conveyed, mortgaged or incumbered by the cestui que trust. The provision, alone, is not sufficient to make or create a spendthrift trust. The possession, use, management, control and income from the land are given to the beneficiary, and he can do as he pleases with the possession and income from the land. Spendthrift trusts are created for the purpose of providing a fund for the benefit of another and at the same time securing it against his own improvidence or incapacity for self-protection. (Steib v. Whitehead, 111 Ill. 247; Wallace v. Foxwell, 250 id. 616.) No such purpose is evidenced by the terms and provisions of the will of James M. Masters. No protection is provided against the improvidence of the cestui que trust and no protection is given him in the use and enjoyment of the rents and profits of the land against creditors. According to the allegations of the bill, William Robert Thomas Masters was twenty or more years of age at the time of the death of his grandfather, and under the terms and provisions of the will he was entitled to the immediate possession and control of the land. We know of no case in this State where a trust in real estate of any kind has been sustained where no active duties were imposed upon the trustee. In all cases where no active duties are imposed upon the trustee, who is directed by the will to hold the estate in trust for the life tenant and remainder-men, the trust is a dry or passive one, which the Statute of Uses executes, and the cestui que trust becomes seized of the legal estate. (Drake v. Steele, 242 Ill. 301; Smith v. Smith, 254 id. 488.) The fact that clause 6 provides the trustee may give notice of a forfeiture imposes no duty upon him, and in case of a forfeiture the title passes to the remainder-men without any act or duty to be performed by the trustee.

The bill seeks to declare a forfeiture of the estate of William Robert Thomas Masters, and complainants contend that as remainder-men they have succeeded to the title to the property. It is a debatable question, at least, whether the restraint upon alienation in the sixth clause of the will was made a condition of forfeiture, and whether, if it was, the written contract or instrument with Dunlap was a violation of that provision, and we do not decide either of those questions. That clause made it the duty of the cestui que trust to pay the taxes, keep the hedges properly trimmed and all buildings in repair, and in case of a failure to do so, after one year's notice in writing to the cestui que trust by the executor, trustee or any party in interest and a failure to perform within said year, the estate of the cestui que trust was to be forfeited and pass to Squire D. Masters, if living, and if he was dead, to his children or heirs. The bill does not allege that any notice had been given by anyone to the cestui que trust under these provisions of the will. There could be no forfeiture without the happening of the contingency or events upon which the will provided for a forfeiture and notice given in strict compliance with the terms and provisions required for declaring a forfeiture. (Henderson v. Harness, 176 Ill. 302.) If the cestui que trust has violated the conditions upon which he was given the land, so as to authorize a forfeiture upon notice, as provided by the will, the appointment of a trustee by the court was not necessary or required for the purpose of having a forfeiture declared, for the will expressly provided that such notice might be given by any party in interest, and appellants are parties in interest as remainder-men.

The decree of the circuit court is affirmed.

Decree affirmed.

(No. 12441. Decree affirmed.)

LUCILLE MOORE, Appellant, vs. JOHN LINN, Appellee.

Opinion filed February 20, 1919.

1. MORTGAGES-a party served with process and defaulted is bound by decree of foreclosure. A party who is personally served with process in a foreclosure suit and defaulted is bound by the decree of foreclosure although she had conveyed the property to the mortgagor under an agreement that he would re-convey to her, and while the fact that he mortgaged the property to secure a bona fide indebtedness and misled her in not asserting her rights may entitle her to relief as against the mortgagor, she cannot enforce her rights as against the property after it has been redeemed by a bona fide creditor of the mortgagor.

2. SAME bona fide creditor redeeming from foreclosure sale is entitled to property. Where a grantee has mortgaged property to secure a bona fide indebtedness, a bona fide creditor redeeming from the foreclosure sale is entitled to the property although the grantee was bound by contract to re-convey the premises to his grantor, where the creditor was not a party to such contract and had no knowledge of it.

APPEAL from the Circuit Court of Peoria county; the Hon. JOHN M. NIEHAUS, Judge, presiding.

JOHN B. KING, for appellant.

Dailey, Miller, MCCORMICK & RADLEY, and MCROBERTS & MORGAN, for appellee.

Mr. JUSTICE FARMER delivered the opinion of the court: Lucille Moore, appellant, filed her bill in the circuit court of Peoria county seeking to enjoin the enforcement of a forcible entry and detainer judgment entered by the county court of said county. The bill recited that complainant became the owner of certain premises in Peoria in 1900, paying therefor $300 in cash and agreeing to pay $3200 more in deferred payments; that soon after the purchase she conveyed the premises to Abraham Jacobson, a lawyer of Peoria, having an agreement with him by which he was

to pay off the $3200 owing on the premises and complainant was to make payments to him from time to time until she should pay him the $3200 and interest thereon, at which time he was then to re-convey the property to her. The bill alleges that without complainant's knowledge Jacobson borrowed $2500 of Fannie Feinburg, giving her a mortgage on the property to secure the same; that Jacobson conveyed the property to his mother, Rachael Jacobson, without consideration, and that later, Jacobson becoming indebted to Robert Krieger, Rachael Jacobson conveyed the property to Krieger, and that all such transfers were made without the complainant's knowledge; that the Feinburg mortgage becoming due a foreclosure suit was begun, and Krieger, Rachael Jacobson, Abraham Jacobson and the complainant were made parties defendant. The bill alleges that complainant was served with process; that she called on Jacobson, her attorney, who informed her there was nothing for her to do and that he would look after the matter for her; that a decree of foreclosure was entered, and at the sale had thereunder Fannie Feinburg became the purchaser and a certificate of purchase issued to her. The bill alleges that after the time for redemption by Krieger, the supposed owner of the equity of redemption, had expired, and to whom Jacobson owed about $3000, Krieger gave Jacobson his judgment note for $25 without consideration; that Jacobson assigned the note without consideration to John Linn, and that by an agreement and understanding had between Jacobson, Krieger and Linn the latter took judgment on said $25 note August 4, 1916, the last day for creditors of Krieger to redeem, and that Linn did redeem the property, paying off the Feinburg mortgage and also paying Krieger some $2800 which Jacobson owed him. The bill alleges that all these proceedings and transactions were had to deprive the complainant of her rights in the premises. The bill alleges that complainant had paid Jacobson, under her agreement with him, in all about $4220, and that she