Syllabus. of the law giving the right, it falls with the law, and it can not thereafter be enforced. It is unnecessary to argue the proposition, that this right to sue for the percentage was not such a right as in legal parlance is termed vested. It is said, by the attorney for the city, that an organized fire department was, at the time of suit brought, in existence in the city of Chicago, and when the premiums were paid. This may be so, and doubtless is so, but as the record furnishes no evidence of the fact, we can not, judicially, take notice of it. Should such proof be made, the case might be brought within the saving of the proviso of section thirty. The judgment, for the reasons given, is reversed, and the cause remanded for a new trial. Judgment reversed. FRANCES MORGAN v. JOHN M. CLAYTON. 1. TRUST what constitutes. When property is sold by agreement of several interested parties to one of their number, to be held in trust for protection of their interests, their intention may be shown by parol or memorandum in writing. 2. SAME-to be fulfilled strictly. A trust must be executed within its terms. An unauthorized sale by the trustee will be set aside at the instance of any injured party. 3. NOTICE-purchase for value. A purchase at an unauthorized and voidable sale must be bona fide, for a valuable consideration, without notice of existing equities, or collusion, or it will be set aside. 4. SAME-collusion—irregularity. Where the purchaser is of kin to the wrongful seller; takes title without the usual preliminary negotiation as to price and terms of sale; when payments are nominal and not provided for in the usual manner, and the vendor is left in control of the property-there is strong presumption of collusion and fraud. Opinion of the Court. 5. QUIT-CLAIM DEED-how far effective. A quit-claim deed will as effectually pass the title and covenants running with the land as a deed of bargain and sale, if no words restrict its meaning. 6. SAME. He who, accepting a quit-claim deed, knowing of a former incumbrance, does not cancel that incumbrance on paying it off, but takes an assignment of it to himself, furnishes the presumption that he considers himself holding as a creditor rather than a bona fide purchaser, and keeps the way open for a redemption by the original mortgagor. 7. VALUE OF IMPROVEMENTS UNDER DEFECTIVE TITLE. The holder under a defective title, though with notice, may be held a mortgagee in possession, and be entitled to repayment of advances made in good faith and expended in improvements. APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding. Messrs. BECKWITH, AYER & KALES, for the appellant. Mr. JUSTICE SCOTT delivered the opinion of the Court: The appellee having purchased of Horatio N. Heald the equity of redemption in the property in controversy, filed his bill to redeem the lands from a mortgage executed to George W. Lay, Sen., on the 1st day of December, 1856, to secure a loan of $10,000 for a period of ten years, with semi-annual interest at the rate of ten per centum per annum. For the principal and the several interest installments secured by the mortgage, notes had been taken, payable in gold or silver, and it was provided that, for any default, the principal should be treated as due. In 1858 the property was further incumbered by Heald with a deed of trust containing a power of sale to Andrew Aiken to secure certain indebtedness to Amos G. Throop. The interest of Throop in that deed of trust had been assigned to Gibbon M. Taylor as collateral security, and the deed itself placed in the hands of his resident attorney, H. F. Mather, who had charge of his interests. The indebtedness, however, Opinion of the Court. secured by the Aiken deed of trust, has been in some way adjusted, and it is not now involved in this controversy. It appears that Heald failed to pay the interest on the Lay mortgage, falling due on the 1st day of December, 1859, and never afterwards paid anything thereon; and that, prior to 1861, he had made default in the payment of the indebtedness secured by the Aiken deed of trust. George W. Lay, Sen., to whom the mortgage was executed, resided in the State of New York, but the loan was effected through the agency of his son, George W. Lay, Jr., then a resident of Chicago. In the spring of 1861, George W. Lay, Jr., still having charge of his father's interest in the mortgage, proposed to Heald and the parties interested at that time in the Aiken deed of trust, to have the premises sold under the power contained in that deed and bid off in his name, so that the property which had hitherto been vacant and unoccupied could be improved and made to produce an income. An arrangement, thought to be profitable to all, was perfected, and accordingly on the 10th day of May, 1861, the property was sold by Aiken, the trustee named in the deed, by virtue of the authority vested in him, and was bid off in the name of George W. Lay, Jr., for the nominal sum of $20, subject, as stated in the deed made by the trustee, to the debt secured by the Lay mortgage. In April, 1863, George W. Lay, Jr., by a quit-claim deed, conveyed the property in controversy to the appellant, and it is that title that he now seeks to interpose as a defense to the relief asked for in the bill. The circuit court decreed relief and caused an account to be taken of the amount necessary to redeem the property, with which both parties seem to be satisfied; at least no objection is made in this court to the sum found to be due to the appellant, which must be paid to him in case a redemption is permitted. Opinion of the Court. The appellant makes two points on which he mainly relies for a reversal of the decree: First-That he was a bona fide purchaser, for value, without notice, and as such, acquired the legal title to the property. Second-That the alleged trust in George W. Lay, Jr., was substantially executed according to its terms, and the appellee and his grantor, after knowing of the sale and conveyance to appellant, delayed for an unreasonable time to make objection if they had any. We will consider these objections in the reverse order from that in which they are stated. It is conceded that Lay, Jr., purchased the property at the trustee's sale under some agreement made with and for the benefit of those interested as mortgagor and mortgagees, but the parties differ as to the exact terms of the trust and as to the construction that shall be given to the contract under which the property was bid off. It is insisted by the appellant that the extent of Lay's undertaking was, and that such was the agreement between him and Heald, Throop and Taylor, that he would hold the land until it had advanced sufficiently, together with the rents to be derived therefrom, to pay the debt secured by the first mortgage and also the further advances of money necessary to erect the building on the premises, and that whenever the property would bring an amount sufficient to liquidate these demands he could properly sell in the due execution of the trust, and the treaty with appellant, in substance, covered his whole obligation and duty in the premises. This was not all his duty, nor even a substantial compliance with the terms of the trust reposed in him. We think that the agreement between the parties was broader and more comprehensive than that stated by the counsel. It seems to us that the memoranda made by Freer and Mather, the attorneys who conducted the business, would furnish the most accurate understanding of the contract under which Lay bid off the property. If the memoranda made at the date of the Opinion of the Court. transaction shall be regarded as containing a true statement of the agreement, there can be no doubt that he was to hold the property not only to secure the debt due to his father, on the mortgage, and the advances necessary to erect the buildings, but also for the benefit of the holders of the Aiken deed of trust, and Heald himself. Great reliance is placed by counsel on the testimony of Throop, as stating accurately and clearly the terms and the extent of the trust. We do not think that the evidence of Throop, when construed together as a whole, is at all inconsistent with the testimony of the witnesses Freer and Mather, aided by the memoranda, or that he states the terms of the trust differently from what they do. According to their evidence, Lay was to be the trustee of all the parties, and so we understand Throop to state the agreement, in substance. There is, in fact, no contradiction, and if there is any difference it is only that he does not state the terms and conditions of the trust quite so broadly. In this view of the evidence, Lay had not complied with the terms of the trust when he conveyed the property to the appellant. The facts in the case clearly rebut the theory that any power of sale was vested in him, and that he could exercise it at any time whenever he deemed the terms of the trust fulfilled. The trust had not then been accomplished, and the conveyance was, itself, a plain and palpable violation of his obligations in regard to it so far as he was concerned. It makes no difference that the indebtedness secured by the Aiken deed of trust has since been extinguished. He was still the trustee for Heald, and he had no lawful right to convey the estate without his consent. It was as much for Heald's benefit as for the benefit of the mortgagees that the property was placed in Lay's hands to be by him improved so as to render it productive. He voluntarily assumed the obligations of the trust, and it was his duty to have discharged them faithfully towards all concerned. In no aspect of the case does it appear that the trust had been executed according to any fair |