Additional opinion of the Court. a case as this, as our statute in respect to "corporations not for pecuniary profit," declares: "Associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, * shall not be deemed insurance companies." Subsequently, upon an application for a rehearing, the following additional opinion was filed: Per CURIAM: The point is made in the petition for a rehearing, that the law will not sanction any contract or other engagement which has a tendency to the commission of crime, and it is claimed the insuring of one's own life for the benefit of a stranger has such a tendency,-hence it is concluded the certificate of insurance to Johnson, for the benefit of Mrs. Van Epps, is void. Viewing this as an original question, there is certainly but little, if any, force in it, so far as it is supposed to be applicable to the case in hand. It is an every day occurrence for persons to make wills containing bequests to mere strangers having no notice of their provisions, and yet the validity of such wills has never been questioned on the ground suggested. So, it is not infrequent that contracts are made to pay sums of money upon the death of a specified person. So, it is a part of every day's experience to convey lands to one for life, with remainder in fee to another, and the validity of these transactions has certainly never been doubted on the grounds suggested, and yet the temptation of the beneficiary to accelerate the enjoy ment of property thus limited, by taking life, is just as strong in either of the cases mentioned as in the case before us. Upon the record before us, however, we deem it wholly unnecessary to inquire whether the claim of Mrs. Van Epps stands upon the same footing that one confessedly founded upon a wager policy does, as is claimed to be the case by appellants, for the result, let the question be decided as it may, is all the same, and equally fatal to their right to main Additional opinion of the Court. tain this appeal. The company has brought the fund in dispute into court, for the express purpose of discharging its liability on the certificate or policy payable to Mrs. Van Epps, and sets forth in its bill that the former certificate was, at the request of Johnson, in his lifetime, taken up and cancelled by the company, and consequently now has no existence. These facts are not denied by appellants, but are admitted upon the record to be true, and the only shadow of claim they have, or claim to have, to the fund in question, must be worked out through the present certificate, which is expressly payable to Mrs. Van Epps, and the by-laws of the company or society, in express terms, as well as the law of the State, if the certificate has any legal effect at all, require the fund to be paid to "the beneficiaries named in the certificate." If the requirement of the by-laws is to be observed, this money, of course, must be paid to Mrs. Van Epps. But for the purpose of defeating her claim, appellants, as we have just seen, say the making of the certificate payable to her was not authorized by law,-that such a contract is in the nature of a wagering policy, and is consequently void as against public policy. Conceding, for the purposes of the argument, this is so, and that the decree for this reason is erroneous, it does not necessarily follow the decree should be reversed, at the instance of appellants, for that reason. The argument is like a two-edged sword,-it cuts both ways. It proves too much. As it has been fully shown the alleged rights which appellants are seeking to enforce in this proceeding are based upon this very certificate, and if it is true, as claimed by them, the certificate is void as against public policy, it manifestly follows they themselves acquired no rights under it, for no one can acquire rights under a void instrument, and it is hardly necessary to add, one will not be heard to complain of an error that does not injuriously affect some right of his. Assuming appellants' hypothesis to be true, the company or society alone would have the right to Syllabus. complain. But it is entirely content, and makes no objection whatever to the payment of the money on the ground suggested. In any view, appellants have no right to the proceeds of the certificate in question. 1. PARTY-to bill to foreclose mortgage. The holder of a bond and mortgage, claiming to own the same by a gift of the mortgagee, though he may have pledged the same to secure a loan, is a proper party in a bill by another, claiming adversely, to foreclose the mortgage, and if not made a party to the bill, will not be concluded by the decree of foreclosure, and his assignee may maintain a bill to impeach the decree on the ground that the party so foreclosing the mortgage did not own the bond and mortgage, and had no equitable title to the same. 2. SAME-unknown persons as parties-designating known parties as such, fraudulently. Section 7 of the Chancery act, which provides that in suits in chancery and suits to obtain title to lands, if there be persons interested in the same whose names are unknown, they may be made parties by the name and description of "unknown owners," must be fairly and reasonably complied with, and not evaded by making a known person a party under such designation. A complainant knowing the parties in interest, and adopting the mode authorized by this provision, is guilty of a fraud on the law and on parties in interest thus described, against which the courts will relieve. 3. GIFT-of bond and mortgage by a party, after the appointment of a receiver. Where the owner of a bond and mortgage, after the appointment of a receiver of his effects in New York, where he resided, gave the same to a relative, and assigned the same, it not appearing that the receiver ever had possession of the same, and the receiver afterwards settled with the court and was discharged, and the donor never revoked the gift after the receiver's discharge, it was held, that the gift passed a title to the donee, and that it would be presumed the donor ratified the gift after the receiver was discharged. Syllabus. 4. DECREE-who may have same opened within three years. The statute which allows a defendant not served with process, and who fails to appear before decree, to come in within three years and have the decree opened, and be allowed to defend on the merits, applies only to persons made defendants to the bill. One not made a party is not required to adopt such a course, but may file a bill to impeach the decree and establish his rights. Besides, this provision was intended to give an additional remedy, and not to limit or take away those already in existence. 5. ASSIGNMENT-to an agent or trustee-change of possession. Where a party made a writing purporting to convey all his real and personal estate to a trustee, for the purpose of sales and collections for the benefit of the maker, the trustee to be paid a commission on all moneys by him received and paid over as directed, and afterwards executed and delivered to another person an assignment of a bond, and mortgage securing the same, and delivered the bond and mortgage to the assignee, and there was no proof that the trustee ever had possession of the same, it was held, that the assignment and delivery passed the beneficial title to the assignee. 6. SAME of chose in action--change of possession to pass title. 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. 7. Where a person by a written document granted and conveyed all his estate, real and personal, to a nephew, in trust, to sell his lands and convert his means into money, and to manage the estate for the grantor's benefit, the proceeds to be paid out and distributed as the grantor might direct, and it appeared that both persons occupied the same office both before and after the making of such writing, and it did not appear that any change in the possession of the grantor's choses in action was ever made, and the grantor afterwards transferred a bond and mortgage to a grand-nephew, and delivered the same to him as a gift, it was held, that there was no such delivery to the trustee shown as would pass the title to the bond and mortgage as against the donee. If the trustee was not a mere volunteer, but a purchaser, it seems the same strictness of proof of a delivery would not have been required. 8. DEED-construed, as to whether passing any beneficial title. A deed recited that the grantor, from infirmities and advanced age, deemed it expedient to convey his estate, real and personal, to his nephew, and then granted and conveyed such estate to the latter, with a proviso that the grantee should sell the real estate for the best prices, and lease the same until sold, and collect all debts due the grantor, the avails of said estate to be disposed of, first, to defray the expenses of the trust, fixing the commissions; second, the residue to be paid over to the grantor during his life, or appropriated to his uses under his direction; and thirdly, after his decease the balance to be distributed as the grantor might direct in a supplementary writing: Held, that in equity the grantor was the only beneficiary, and had the absolute right Statement of the case. to receive the money arising from the sale of any of his property, to dispose of as he chose, and unless sold by the trustee, the grantor might transfer a bond and mortgage of his to any one he saw fit, and pass the equitable title, especially when the trustee had not reduced the same to his actual possession. APPEAL from the Appellate Court for the Second District ;— heard in that court on writ of error to the Circuit Court of Lake county; the Hon. CHARLES KELLUM, Judge, presiding. This was a bill in the nature of a bill of review, filed in the circuit court of Lake county, on March 22, 1878, by the appellant, Quincy W. Wellington, against John Heermans, since deceased, and the other appellees, seeking to review a decree of said circuit court rendered at the March term, 1876, in a case of a bill filed by said Heermans to foreclose a certain mortgage, and asking that appellant be decreed to be the owner of said mortgage, and that he be subrogated to all the rights of said Heermans acquired at a sale which had been made under said decree, and asking, also, by way of alternate relief, that said decree be held null and void, and that the mortgaged premises be again sold, etc. On July 15, 1867, Alonzo I. Wynkoop, of Chemung, in the State of New York, executed and delivered his bond to Joseph Fellows, of Corning, in the same State, for $14,045.58, payable in ten equal annual installments, with interest at seven per cent per annum, from January 1, 1867, and on the same day Wynkoop and wife executed and delivered to said Fellows their mortgage upon certain lands in Lake county, in this State, in the bill described, to secure the payment of said bond, which mortgage was recorded in the proper office. On October 10, 1868, Fellows executed and delivered to John Heermans, since deceased, an instrument in the words and figures following, to-wit: "Whereas, I, Joseph Fellows, of Corning, in the county of Steuben, and State of New York, from infirmities and advanced age, deem it expedient to convey to my nephew, John |