1. “Realty, or real estate, includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of, or dependent thereon. The right of the owner of lands extends downwards and upwards indefinitely.” Code, §2218. Where there is a conveyance of land by deed, containing no reservations as to the buildings, a parol understanding that the vendor retains the ownership of the houses, with the right to enter and remove them, is certainly inconsistent with the deed. Such a stipulation ought to find a place in the instrument, or in some collateral writing. If left out by mistake, the mistake ought to be properly pleaded and fully proved. In the present case, the parol evidence touching the houses was in the very teeth of the writing, and ought to have been excluded.
2. The section of the Code above recited declares that all things permanently attached to either land or buildings are realty. And the next section adds: “ Anything -intended *503to remain permanently in its place, though not actually attached to the land, such as a rail-fence, is a part of the realty, and passes with it. Machinery not actually attached, but movable at pleasure, is not a part of the realty.” Applying these provisions to the running-gear of a cotton-gin, in position for use and attached to the gin-house, there is, we think, a presumption that the attachment is permanent, and therefore this species of property is prima faoie realty, and passes with the land. On the other hand, the gin itself and the band used to connect it with the running-gear are personalty, and will not pass with the land without express agreement or something equivalent. But the whole establishment for ginning may be treated by the parties as realty if such is their mutual intention, and in that event a conveyance of the land and appurtenances would pass the whole. So, they can, if they please, deal with the running-gear, as well as with the gin and band, as personalty, and effect may be given to their true intention if it can be ascertained from the res gestee of the- contract. While the law classifies such articles as these, it at the same time recognizes their ambiguous or variable character, and permits the parties to class them differently in different instances. The element of intention enters into the question of permanency, whether of attachment or placing, and the intention is open to investigation by parol evidence. We hold that such evidence respecting the real contract touching the running-gear, the gin and the band, was not inconsistent witli the deed in the present case. The parties had been tenants in common. But the question of intention was for decision by the jury, and not by the court. The court should have instructed the jury what the several articles were, prima faoie, leaving it to the jury to say whether, from the parol evidence, the parties had a mutual intention to treat them differently, and contracted accordingly. See some conflicting authorities cited in Ewell on Fixtures, 344.
3. If in the real transaction as both parties understood it, the maker of the deed retained his interest in the gin and *504band, or in these and the running-gear, a parol agreement making the reservation, and stipulating that the gin was to remain where it was and be used by both parties, is not in conflict with the deed. We think, too, that the damages for excluding the plaintiff from sharing in the use would be measured, not by the value of his interest in the property, but by the value of such rightful use as he has been deprived of. The gin is still in its proper place, and he is as much the owner of it as ever. As the land and house are no longer his, in whole or in part, his right to use the gin where it stands is not the result of title but of special contract, and his grievance is a breach of that contract.
4. As the charge of the court treated of an alternative promise on the part of the defendant, and only an absolute promise was alleged in the declaration, the charge went beyond the pleadings, and was therefore erroneous. If the plaintiff considered an alternative promise proved, and meant to rely upon it, he should have amended his declaration to conform to the evidence. Perhaps the evidence was conflicting, and if so, to provide for either aspect of it, there should have been two counts in the declaration. At all events, the court should not have charged as if there were two counts when there was but one. The judgment is reversed on both writs of error.
