In order to determine what evidence is properly before us for consideration, it is necessary that we first-pass upon the errors assigned in regard to the rulings upon, evidence.
First—It is contended the court erred in admitting in evidence the depositions of Jones, Hitt, Wilson and Porter, on the hearing of the cross-bill. This, in our opinion, admits of two answers:
1. There was no decree dismissing the original bill, and the final decree recites that the cause came on for trial “upon an amended bill and supplemental bill of the said John L. Wilson,” and the pleadings responsive thereto, and on the cross-bill of the pity of Chicago, etc. The court, in the previous order, made on the 12th of June, 1882, it is true, recited that-it found that because Wilson was discharged as a bankrupt in the year- 1841, under the Bankrupt law then in force, “he-had no interest- in the premises in controversy upon which to-sustain the bill herein;” but it was only decreed, as a result of that finding, that leave be given to amend the bill by the addition of a new party complainant, and also that leave be given to the city of Chicago and Stanley to file cross-bill, etc., and so the original bill, as amended, was still before the court. It is obvious that if the court was mistaken as to the effect of the discharge in bankruptcy upon Wilson’s standing in the-case, and if, notwithstanding such discharge, he retained such an interest in the property in controversy as enabled him to maintain the original bill, it is unimportant whether these depositions were properly admissible to prove the allegations of the cross-bill, since the decree, so far as affects the interests of these appellants, must be the same, whether it shall be considered as under the original bill or under the cross-bill. That the court was mistaken as to the effect of the discharge in bankruptcy upon Wilson’s standing in the case, we think can admit of no doubt. We said in Marshall v. Tracy, 74 Ill. 379 : “The doctrine best sustained by authority is, that the original cause of action is not destroyed by the discharge in bankruptcy. The bar which the discharge interposes may be removed by an unconditional new promise, and debt revived upon the original consideration. ” And this was. re-affirmed in Classen v. Schoenemann et al. 80 Ill. 304. The discharge is analogous, in effect, to the Statute of Limitations, in so far as it does not annul the original debt, but merely suspends the right of action for its recovery. (F. and M. v. Flint, 17 Vt. 508; 44 Am. Dec. 351.) It follows, necessarily, that the privilege is purely personal to the bankrupt, and if he does not choose to avail of it, no one else can do it for him. Wilson here had the undoubted right to treat the covenant as binding upon him, notwithstanding his discharge, and having done so, he has now the same interest in the property that he had when he made his covenant.
2. The record recites that “it is further ordered, by consent of parties, that the depositions and evidence heretofore taken or heard in this ease, or in the former ease of Hitt v. Bush, (chancery,) or Bush v. Isaac R. Hitt and the City of Chicago, so far as such testimony is competent evidence, may be read on ■ the hearing of this cause.” The parties were then all before: the court, Charles B. Lawrence being one of the solicitors, andi no reason is pointed out why they might not agree as to what should be read in evidence. This agreement plainly waives all objections to the time and mode of taking these depositions, and that includes the objection now urged.
Second—It is next contended that the court erred in admitting in evidence certain portions of the testimony of Hitt and-Jones, as to the contents of deeds, etc., in the chain of title, because the memoranda which were testified to by them were1 not made as abstracts of title. The objection can not, in our opinion, be sustained. It is provided by section 28, chapter 116, of the Revised Statutes of 1874, that in cases like the present, where it is shown, as it here was, orally, in court, “that the original of any deeds, conveyances, or other written record evidence, has been lost or destroyed; or not in the power of the party wishing to use it on the trial to produce the same, and the record thereof has been destroyed by fire, or otherwise, the court shall receive all such evidence as may have a bearing on the ease, to establish the execution or contents of the deeds, conveyances, records or other written evidence so lost or destroyed.” The recollection of witnesses as to the contents of such lost or destroyed instruments would clearly be competent under this section, and we perceive no reason why their recollection might not be refreshed by reference to notes taken by the witnesses, and known to be correct. (Greenleaf on Evidence, sec. 436.) The memoranda of the witnesses were not read in evidence on their direct examination, but, as we understand the record, the witnesses simply refreshed then- memories by referring to them, and then testified to what they recollected. The memoranda of Jones were, on his cross-examination, given in evidence at the instance of one of the counsel for the appellants, but for that error, of course, appellants cannot complain.
Third—This brings us to the vital question in the case,— does the evidence establish a resulting trust ? Wilson testified that he procured Isaac K. Palmer to enter this land for him; that he gave Palmer $100 wherewith to enter the land; that Palmer entered it, and afterwards transferred it to him by assigning the certificate of purchase or making him a quitclaim deed,—he is not certain which. He adds: “I got Palmer to enter it, because I wanted to show that I paid him more than $100 for it, because you could go and enter up all the land around there you were a mind to, at that time, for $1.25. I recollect giving him the $100 to go and enter that particular piece of land with, just as well as if it had been an hour ago.” This evidence is nowhere disproved. Palmer, when first applied to, denied that he ever owned the land, and then offered to quitclaim to Wilson upon being assured of his identity, but after being interviewed by Bush he seems to have argued himself into the belief that the land must have been entered for him by a partner named George; but he distinctly states that he has no recollection at all of the entry. He argues, simply, that this or that must have been so because of other facts-stated by him, but does not state a single fact in regard to the entry as of his own knowledge. Such testimony is insufficient to prove anything. Wilson is corroborated by these circumstances. The land was entered on the 28th day of January, 1836, and on the 2d day of February, of the same year, he-sold and conveyed it to Charles Petit. Palmer never made-any claim to the land for a period of forty years, lacking only a few months, and then only after his attention was called to-it by other parties. He gives, as an excuse, that he became-insolvent about 1837-8, and left Chicago in 1841, and always supposed that all the land he had in Cook county had been, sold. But that did not affect his recollection of the property he did unquestionably own in Cook county. He describes that property from memory, and shows how he acquired it, but he-has no recollection at all of this land. In showing how he acquired other property, and what money he had, he always, shows, inferentially, that he could not have had the money wherewith to purchase this land.
We do not think it needful to discuss the evidence on this-question further, but deem it sufficient to say that it has all been carefully examined and considered, and we are of the-opinion that it clearly sufficiently establishes a resulting trust..
Fourth—But counsel interpose the laches of Wilson, and, those claiming in right of him, as a bar to relief. But appellants have not been, nor has any one under whom they claim ever been, in possession of the land. The doctrine of laches can only be invoked by one in possession against one out 'off possession.
Fifth—It is objected that if it be true that Palmer either-assigned the certificate of entry or deeded tins land to Wilson, then there is not the slightest need for the interposition of a court of equity. While it is true that section 20, of chapter 51, of the Bevised Statutes of 1874, makes the official certificate of any register or receiver of any land office of the United ■ States evidence of certain things, the 21st section of the same 1 chapter provides that “a patent for land shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than the official certificate of any register of a land office of the United States, of the entry or purchase of the same land.”
Sixth—It is objected that the decree does not establish title either in Stanley or the city of Chicago. The decree finds that Stanley owns the land, subject to the mortgage of the city. We fail to perceive how appellants have any interest in the question of priority between these parties.
Seventh—The cross-error raises the question of the admissibility of the certificates of deposit for redemption. We think they were properly admitted in evidence. It is provided by-section 197, chapter 120, of the ¡Revised Statutes of 1874, that “when any tract or lot shall be redeemed from tax sale, the clerk shall enter the name of the person redeeming, the date,, and the amount of the redemption, in the proper column. AncI section 120 of the same statute provides that the books and records belonging to the office of the county clerk, or copies, thereof certified by said clerk, shall be deemed prima facie evidence to prove the sale of any land or lot or taxes or special assessments, the redemption of the same, or payment of taxes; or special assessments thereon.” We think these certificates; are, within the meaning of this section, “certified copies of the-record of redemption.”
On the whole, we find no cause to disturb the decree below, in any respect. It is therefore affirmed.
Decree affirmed.