he shall be entitled to receive the amount paid in by him, and such interest thereon, or such proportion of the profits thereon, as the by-laws may determine, less fines and other charges. 1 Starr & C. St. 630.

any application to members who are borrowers, but, as the association saw fit to accept the surrender of the stock in question upon certain terms, it is undoubtedly bound by the terms thus agreed upon. But in the computation which we have already made, the appellees have been given the benefit of the stipulated credit.

date of bill, $648.11; fines, $58.80; solicitor's fee, $50; making a total of $4,356.91. The amount of premium chargeable, after deducting the $250 paid, being only $500, it could have been only $750 in the aggregate, which is consistent only with the theory that the 25 per cent. premium was to be computed upon the net, and not upon the gross, amount of the loan. We are of the opinion, then, whatever may be the true construction of the statute above quoted, that the association in this case is precluded, by its dealings with Tascott, and particularly by the allegations of its bill, from insisting that the principal of the indebtedness secured by the mortgage in question originally exceeded the sum of $3,850; and, $250 having been paid thereon October 6, 1885, the principal since that date is only $3,600.

The superior court, having adopted the finding of the master that the original principal was $4,133.33, was in error, and the appellate court properly reversed the decree based upon that finding. But we are unable to reach the same conclusion as did the appellate court as to the amount due. Assuming a principal of $3,600, bearing 8 percent. interest, the interest having been paid up to May 17, 1886, there was due, principal and interest, May 5, 1889, the date of the decree of the superior court, the sum of $4,406.40. Add to this the $50 solicitor's fee, for which the mortgage stipulates, and $11.40 of fines, which the appellees admit were properly imposed, and the total amount due at that date was $4,467.80. The appellate court, in reaching the amount for which it directed a new decree to be entered, seems to have adopted a computation submitted by the counsel for the appellees, in which a credit of $375 upon the premium charged was claimed, the appellees having tendered, and the appellant having accepted, a surrender of the shares of stock held by the appellees at the hearing. We see no ground for the allowance of this credit. The surrender of said stock, however, was made and accepted on the condition that the appellees should be credited on whatever amount was found to be owing, with the $250 paid on said stock, and interest thereon, as provided by statute. The only statutory provision on the subject, so far as we are advised, is found in section 6 of the act in relation to associations of this character; that provision being that any stockholder wishing to withdraw from the association shall have power to do so by giving certain notice, and that on such withdrawal

the principal of the indebtedness as of the date it was made, thus canceling that amount of the principal, and relieving the borrower from liability to pay interest thereon. We see no ground for any further application of said credit, nor for the giving of any other credit growing out of the surrender and acceptance of said stock. Section 10 of said statute, (Rev. St. 1891, c. 32, § 87,) to which some reference seems to be made, has, in our opinion, no application. Thatapplies only to borrowing stockholders, who, of their own motion, elect to pay their loans before they mature; that is, before their stock becomes par. In those cases, if the payment is made within less than eight years from the issue of their series of stock, they become entitled, on paying their loans, to be refunded one eighth of the premium paid for every year of said eightyears then unexpired. The appellees here are not seeking to pay their loans before maturity. On the other hand, they were nearly or quite two years in default. The monthly installments on principalwere paid only up to and including the one maturing October 1, 1885, and the interest was paid only up to May 17, 1886, while the bill to foreclose was not filed until February 10, 1888. The association, after declaring the entire amount secured by the mortgage due, as it had a right by the terms of the mortgage to do after six months' default, commenced proceedings to foreclose the mortgage. Clearly the rebate of portions of the premium required to be made to stockholders paying before maturity is a matter wholly foreign to anything appearing in this record. As we understand the evidence, then, there was due to the association on said mortgage on the 5th day of March, 1889, the date of the decree of the superior court, the sum of $4,467.80. Of this sum $3,600 was principal, and bearing interest, by the terms of the mortgage, at the rate of 8 per cent. per annum. The judgment of thre appellate court, so far as it reverses the decree of the superior court, will be affirmed, but the directions accompanying the remanding order will be set aside, and the cause will be remanded to the superior court, with directions to enter a decree in favor of the complainant for said sum of $4,467.80, together with interest on said sum of $3,600 from March 5, 1889, to the date of such new decree, at the rate of 8 per cent. per annum; the appellees to pay the costs of this court, and the appellant to pay the costs of the appellate court. Affirmed in part, and reversed in part.

suit, unless defendant or its servants are guilty of gross or willful negligence, causing such injury.

Statement by the court:

This was an action brought by Samuel P. Dickson against the Chicago, Burlington & Quincy Railroad Company to recover for an injury alleged to have been received on the 13th day of November, 1888, while the plaintiff was a passenger on one of the defendant's freight trains going from Sheridan, in La Salle county, to Chicago, caused by collision of the defendant's trains at or near Downer's Grove. It is alleged in the declaration that the plaintiff became a passenger on a certain train of the defendant on the said railroad, to be carried, and was thereupon accordingly thus carried, on said train, for a certain reward to the defendant in that behalf. The declaration alleges due care on the part of the plaintiff, and thus avers the carelessness of the defendant, as follows: "The defendant carelessly and negligently caused one of its said trains to be run into the said train upon which the defendant was then being carried as aforesaid, and because of the collision of said trains as aforesaid the plaintiff was thrown with great force and violence against the side of the car wherein he was being conveyed as aforesaid, by means whereof he, the plaintiff, was greatly bruised and injured, and thereby the plaintiff was obliged to, and did then and there, lay out divers large sums of money, amounting to, tu wit, one thousand dollars, in and about endeavoring to be cured." This is the only charge of negligence contained in the declaration, and the record contains no evidence that the accident which resulted in the plaintiff's injury resulted from a collision of trains. The facts as they appear in the record are these: On the 13th day of November, 1888, one Edgar Seaman shipped by rail fron Sheridan, a station on the Burlington road in La Salle county, two stallions, for Chicago. He loaded the two horses in what is called a "combined freight and stock car," and put appellee in charge of the stallions, to take care of them on the way, and to receive them in Chicago. The car left Sheridan about noon on the day mentioned. When the car reached Aurora,-a junction of several railroads, -another train was "made up" for Chicago, with a different crew in charge of it. At the request of appellee, this car of stock was placed next to, and immediately in front of, the way car. Appellee got into the car with the two stallions, and the train started for Chicago. When within a half or three quarters of a mile from Downer's Grove, the train running about 10 miles an hour, from some unknown cause the car next to the engine left the track, and other cars following it, to the number of about 20, were derailed. About 20 cars on the rear end of the train, including the car occupied by the plaintiff, remained upon the track in good order. The plaintiff, however, claims that by the sudden stopping of the car he occupied he was thrown from the middle of the car, where he was sitting, to the end of the car, a distance of 15 feet, striking the end of the car with his back, and was thus injured.

gence. There was therefore no evidence in the record upon which the amendment could be predicated. But we do not think the amendment could do the defendant any injury. Instructions should always be predicated upon the evidence in the case; but the giving of a mere abstract proposition of law to the jury on an instruction ought not to be ground for the reversal of a judgment, unless the giving of such abstract proposition was calculated to mislead the jury. Objection is also made to a similar modification of defendant's instructions Nos. 2,3, and 4. What was said in regard to the modification of No. 1 applies here. The seventh and ninth instructions were slightly modified, but we perceive no vital objection to the change made by the court; indeed, as given, they were as favorable to the defendant as the facts would warrant. Nos. 20 and 21 the court refused. No. 20, in substance, told the jury that plaintiff had no right to ride in the car with the two horses, and, if the injuries were received while plaintiff was riding in the car with the horses, he cannot recover. If the defendant waived that clause in the contract prohibiting plaintiff from riding in the car with the horses, and consented that he might do So, (and these were questions for the jury to determine,) then he was rightfully in the car, and the court could not do otherwise than refuse the instruction. Instruction No. 21 by its terms excluded from the consideration of the jury all evidence bearing on the right of plaintiff to ride in the car with the two horses, except the clause contained in the contract of shipment. For this reason, if for no other, it was erroneous, and properly refused. In conclusion, as we find no substantial error in the record, the judgment of the appellate court will be affirmed.

(143 Ill. 375)

Oct. 31, 1892.)

99

KNAPP et al. v. JONES.1 (Supreme Court of Illinois. CHATTELS REAL-MORTGAGE-ESTOPPEL. 1. Under Rev. St. 1891, c. 30, § 38, which declares that the term "real estate,' as used in the statutes regulating conveyances, shall include chattels real, a grain elevator of permanent structure, built by a lessee on ground held under a lease which provides that the lessor may terminate the lease on 60 days' notice, and that the lessee may remove his buildings at any time before expiration of the lease, is, together with the leasehold estate, to be classed as real estate, so that the holder of a recorded mortgage thereon has priority over a subsequent execution creditor, even though he has not taken possession within two years after the date of the mortgage, as is necessary in case of chattel mortgages. 38 Ill. App. 489, affirmed.

PER CURIAM.

Since filing the foregoing opinion, on a petition for rehearing by appellants, we appellants, we have reconsidered the grounds for reversal, and the arguments in support of the same, and have again reached the conclusion that the decree of the circuit court is right, and that the petition for rehearing should be denied. Complaint is made in the petition for rehearing that the opinion filed does not notice the point made in the original argument of counsel for appellants, that appellee, Jones, should be held estopped to deny that the elevator in question is personalty, by accepting the deed describing it as a chattel, and having the same acknowledged as a chattel mortgage, and entered as such on a justice's docket. If the ruling upon the principal question stated in the opinion of the appellate court is correct, viz., that said elevator was, as between the parties to this suit, under the conveyance from Blanchard and wife to Knapp, "a chattel real," the question of estoppel is effectually disposed of, and the facts recited by counsel upon which that branch of their argument is based necessarily held adversely to their construction. That is to say, the argument that there is an estoppel by deed is based upon the theory that the conveyance from Blanchard to Knapp is a chattel mortgage, the contention being that the description, "also the grain elevator, and the lease ground the same stands upon," is as to the elevator but the description of a personal chattel, and that Jones, having accepted a conveyance so describing it, cannot be heard to insist it is realty. If the construction of the deed insisted upon could be maintained, there would be no occasion for invoking the doctrine of estoppel. Counsel say, "The case is in all essential particulars precisely identical with that of Ballou v. Jones, 37 Ill. 95." There the conveyance was a chattel mortgage, in the usual form, upon a building described as "goods and chattels." It was made after the expiration of the term for which the ground on which it stood had been leased, and, as was said in the opinion in that case, if the building had been realty, the mortgagor would have had no title to it, and to have mortgaged it would have been a fraud. There, the attempt was to deny in the face of the mortgage that the property was personalty. Is that in any sense the present case? Here, the conveyance under which appellee, Jones, claims, is an ordinary trust deed, in the nature of a mortgage upon real estate, to secure an indebtedness therein set forth. The granting clause is: "Now, therefore, the said party of the first part, in consideration of the premises, * *have and do hereby grant, bargain, sell, and convey unto the said party of the second part all the following described lands and premises, situated in the county of La Salle and state of Illinois, to wit. Here follows a description of different tracts of land, the last description being "the grain elevator, and the leased ground the same stands upon, owned by said Blanchard, and situated upon the right of way of the Illinois Central Railroad, at Lostant, iu said

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are in the usual form of such trust deeds, making no distinction between this and other property conveyed. The certificate of acknowledgment is in thestatute called a "form" for conveyances of real estate, except that after the words "waiver of the right of homestead" is added, "and that I duly entered said instrumenton my docket." We are at a loss to perceive in this conveyance anything which even savors of an admission that the elevator and leased ground on which it stands are other than real estate, much less such an admission as would work an estoppel. The effort of appellants is to construe the conveyance into a chattel mortgage, and then deny the right to question that construction by estoppel. Even if the language used in describing the property could be construed to be two descriptions, one of the elevator, and the other of the leased ground, (which, to say the least, would be a strained construction,) still there is no principle of law, in the doc. trine of estoppel, or elsewhere, upon which the parties to the instrument can be denied the right to question that construction.

Permitting or procuring the entry to be made upon the justice's docket, as in case of a chattel mortgage, could only work an estoppel in pais against the party consenting thereto, upon the theory that he bad some peculiar knowledge as to whether "the grain elevator, and leased ground the same stands upon," were, in law, real or personal property. It is described in the entry made by the justice precisely as it was in the deed. Being in law a chattel real, and conveyed as such, what appellee may have said. could not change it into chattel property. Appellants had the same means of knowledge, as to which class of property it belonged, as had appellee. An equitable estoppel only arises when there has been a representation concerning a material fact to a party ignorant of the truth of the matter, with the intention it should be acted upon, and which has been acted upon. People v. Brown, 67 III. 437. If the element is wanting, there is no estoppel; as, if both parties were equally cognizant of the facts, and the declaration or silence of one party produce no change in the con. duct of the other, he acting solely upon his own judgment. There must be deception, and change of conduct in consequence, in order to estop a party from showing | the truth." Davidson v. Young, 38 111. 152, and authorities cited. There is no view of this case in which the doctrine of estoppel, either by deed or in pais, has any proper application.

question here involved. He having voluntarily conveyed it, together with his leasehold estate in the land, what did his grantee get, -a mere chattel or a chattel real? In Dobschuetz v. Holliday, 82 111. 371, cited in the opinion of the appellate court, (38 Ill. App. 489,) it was sought to establish a mechanic's lien against leased premises, together with an engine and other improvements placed thereon by the lessee. It was insisted in defense that the engine was personalty, and it was there said: "Whatever may have been the private agreement of the parties, it is very clear that the engine, when set up and attached to the realty, as it was, became a part of the estate the lessee had in the premises. No doubt the parties could agree among themselves they would treat the engine and other fixtures as persoralty, but their private agreement could not change the character of the property, so far as third parties were concerned. The engine and superstructure, when attached to the soil, became a part of the estate of the lessee, and, unless expressly reserved, would pass to his grantee with the estate. Ombony v. Jones, 19 N. Y. 234. Under the agreement of the parties, the lessee had the privilege of removing all machinery and fixtures used in and about the mines in prosecuting the work, but until severed they constituted a part of the estate itself. Of this we think there can be no question." In Griffin v. Marine Co., 52 III. 130, also cited in the foregoing opinion, "a lessee of a lot of ground erected a building thereon, with an agreement with the lessor that the former might remove all the improvements placed by him on the premises, or the lessor should pay for them at their appraised value; and, in case of removal, rent was to be paid upon an appraisement, to be made at certain intervals without regard to improvements. The lessee and owner of the improvements executed a mortgage upon his interest in the premises, including the improvements, and it was held the property mortgaged was an actual interest in real estate, -a chattel real at the common law; falling under the definition of 'real estate'given in the first section of our statute of judgments and executions, and, because immovable, possessing none of those attributes as personal property which have shaped the law in regard to the mortgage of said property." Bouvier's definition of a "chattel real" is substantially the same as that of text writers generally. He says: "Chattels real are interests which are annexed to or concern real estate; as, a lease for years of land. And the duration of the lease is immaterial, whether it befor one or a thousand years, provided there be a certainty about it, and a reversion or remainder in some other person; a lease to continue until a certain sum of money can be raised out of the rents is of the same description; and so, in fact, will be found any other interest in real estate whose duration is limited to a time certain, beyond which it something less than a freehold." Apply