delivered the opinion of the Court:
It is first urged by appellant, that in the suit by Heermans to foreclose the mortgage, Hill, who claimed to own it, was not made a party, and is therefore not bound by the decree, and may impeach it because Heermans did not own the mortgage,—that Hill was an indispensable party, and he has the right to. foreclose the mortgage, precisely as though no decree had been rendered. But in answer to this position it is urged that Hill was made a party by the language, “unknown owners and others.” The seventh section of the Chancery act provides : “In all suits in chancery, and suits to obtain title to lands, in any of the courts in this State, if there be persons interested in the same whose names are unknown, it shall be lawful to make such persons parties to such suits or proceedings by the name and description of unknown owners, or unknown heirs or devisees of any deceased person who may have been interested in the subject matter of the suit previous to his or her death; but in all such cases an affidavit shall be filed by the party desiring to make any unknown person a party,” etc. This provision must be fairly and reasonably complied with, and not evaded. A complainant knowing the parties in interest, and adopting the mode authorized by this provision, to prevent their obtaining notice of the proceeding would be guilty of a fraud on the law, and on claimants or parties in interest, by being thus described. The law will never permit its process to be used for fraudulent purposes, and when such an attempt is made, the courts will relieve against such a fraud. The purpose of the statute is to give notice and afford an opportunity to all persons claiming an interest, to appear and be heard in defence of their claims before being deprived of them. The statute can not be perverted so as to avoid instead of giving notice to defendants. Heermans, in his answer to the bill in the Lee foreclosure suit, alleged that Joseph F. Hill, Jr., claimed to be the owner of the mortgage, and was using Lee merely to obtain a foreclosure for his own benefit, and in his testimony in this case he admitted that Hill claimed to own the mortgage by assignment from Fellows. He must have known, however, that Hill claimed to be assignee of the debt, as they were both nephews of Fellows, and both had transacted business for him. Heermans then evaded making Hill a party to his foreclosure suit, and fraudulently perverted the statute to avoid making Hill a party to his bill, and Hill can not be bound by the decree.
Heermans claims that inasmuch as the property of Fellows was all in the hands of the receiver, he had no power to assign the bond and mortgage, and the attempt to do so conferred no title on Hill, and hence appellant has no title. The receiver settled with the court, and was discharged, and we infer he made no report to the court that this claim ever came into his hands, nor does it appear that Heermans ever claimed or demanded them of the receiver; and inasmuch as Fellows never recalled the gift after the receiver was discharged, he ratified the gift.
But it is urged that appellant’s sole remedy was to come in after he purchased the bond and mortgage, and within the three years allowed by the statute, and petition to have the decree opened, and to be permitted to answer and defend. Hill, his assignor, not being a party to that decree, was not required to adopt that course. It is claimed that decree did not become final until the expiration of three years after it was rendered, and that until that time a bill of review could not be maintained. It has been held that under that provision-of the Chancery act a defendant has five years after that period has expired, to prosecute error. (Sale v. Fike, 54 Ill. 292.) The same rule was announced in Lyons v. Robbins, 46 Ill. 276; and in the cases of Southern Bank of St. Louis v. Humphrey, 47 Ill. 221, and Martin v. Gilmer, 72 id. 193, it was held not to protect purchasers under it, because it was not final. But the statute calls such a decree final, and in the sense that it settles the rights of the parties and concludes complainant by its findings, it is final. It is so for all purposes, except it may, on a proper showing, be opened by a defendant who was not served with process. There can be no question that a writ of error will lie to such á decree at any time after it is enrolled, and a bill of review may be filed at any time when a writ of error will lie. This provision of the statute was intended to give an additional remedy, and not to take away or limit those, already in existence. Had such been the purpose, some language would have been employed to express the intention, but we find none from which such an inference can be drawn. But outside of this, appellant or his assignor was not a party to that decree. The statute provides the parties not served, alone shall have the privilege of opening the decree, so that in any event, under the facts in this case, appellant may-maintain his bill.
Having disposed of these preliminary questions, we shall proceed to consider the merits of the case. All persons in the profession must know that the title to chattels or choses in action does not pass by sale or gift, as to creditors or purchasers, unless accompanied by possession, either actual or constructive,—and in this case there is not sufficient evidence to show that Fellows ever delivered or Heermans ever acquired possession of these instruments, under the deed of the 10th of October. He, in his testimony, does not say that there was actual or symbolical delivery, or that he had any control over them, or even saw them. He supposed, but does not know, that they were among Fellows’ papers, to which he had access. From the evidence in the case we are strongly impressed with the belief that no such delivery was made as was necessary to pass title to Heermans. The presumption from the fact that Fellows had possession when he assigned them to Hill, is, that he never parted with them. Fellows occupied the office in which his papers were kept, and in which Heermans and the receiver transacted the business. It was in a room of "his house, and he must have had access to all his papers after as before the execution of the deed of the 10th of October, 1868. Heermans does not say there was any change after that time. We are therefore of opinion that such a delivery is not shown as passed the title. If Heermans was claiming as a purchaser, it might be that such strict proof of a delivery would not be required; but he claims as a volunteer,—and not only so, but he must claim for Fellows’ estate, although in his bill and decree he claims in his own right. It is true that Hill took also as a volunteer, but appellant did not, as he paid value, and Fellows had assured him that he had the power to revoke the deeds of the 10th and 15th of October, and had the power to dispose of his property.
It is, however, urged, that appellant exchanged property for this claim worth not exceeding $3000, but the other side asserts it was worth $17,000. In any event, Hill acknowledged in the assignment that he had received value, and it is admitted there was a consideration paid for the assignment. Did Hill acquire title by the assignment ? The instruments were payable to Fellows, they were at the time in his possession, and under the deed of the 10th of October, even if Heermans ever obtained possession he held the title for the use and benefit of Fellows; but if Heermans never acquired possession, then Fellows had the unquestioned right to transfer them, as he did, and Hill thereby became fully invested with the equitable title which he transferred to appellant, and he is authorized to enforce it against Heermans and the representatives of Fellows. Hill, by the assignment, took the title, and in equity he always held the title until his assignment to appellant. It is true it was pledged as security for the money borrowed of Lee, but in equity the title was in Hill, and he was a necessary party to foreclose his title. Heermans held all of Fellows’ property of which he acquired possession, with power to sell, collect and reduce it to money, and pay it to Fellows, retaining expenses and commissions. In equity, Fellows was the only beneficiary, and had the absolute right to receive the money, and when received, to dispose of it as he might choose. On this right and power there was not the slightest restriction. It, in equity, was- his property, and held by Heermans solely for his use, from the time he executed the deed of the 10th of October, until' the time of his death, unless sold or otherwise disposed of, so as to pass the title. This being true, we are unable to perceive any valid reason why he could not sell and pass his equitable title to this bond and mortgage. By doing so no one’s rights were invaded, or impaired, or wronged. Had this money been collected and paid to Fellows, no one could contend that he could not have given it- to Hill, and if so, he could surely anticipate its collection, and give the instruments that evidenced and secured the indebtedness. We are aware of no law that prohibits a person not under disability from selling his property, choses in action, or equitable rights. Heermans was clothed with a mere naked power, coupled with no interest. We have no hesitation in saying that the equitable title to these instruments passed to Hill, and appellant has succeeded to all his rights.
In reference to the decisions of the courts of New York and other States, we only need to say that although they grew out of this deed of October 10, 1868, the questions we have discussed were not involved, nor do they decide anything repugnant to the views here expressed.
For the reasons above given, the decree of the court below is reversed, and the cause remanded.
Decree reversed.
Mr. Justice Craig, dissenting.