— On the former appeal (80 Ala. 103), we held, that the engine in controversy, not being connected with any substance constituting a part of the realty, being attached to the land only by its own weight, and being used only to furnish motive power to the gin, is to be considered, prima, facie, a chattel; and whether it lost its original character, and became a part of the realty, depended on the intention of the mortgagor; the onus being on the plaintiff to *158show intention to make it a permanent accession to the freehold, and an enhancement of its value; and that the inference of intention should be submitted to the jury. The charge of the court clearly, and distinctly submitted this question to the determination of the jury. It is not obnoxious to the objection, that it is involved and uncertain. If the engine was annexed to the realty, in such manner, for such use, and with such intention as to constitute it a fixture, the right of plaintiff attached eo instcmti, and could not be impaired or destroyed by a subsequent severance without his consent. If not a fixture, no right attached whether or not severed. The question of severance is immaterial.
The court further instructed the jury, that from certain facts hypothetically stated, and the other evidence, they may find the intention that the engine should be a fixture. The phraseology may be calculated to mislead, and is objection-' able on this ground; but this is not a reversible error, unless it appears that the jury were misled. Erom the manner of annexation, the use to which, the engine was adapted, and for which it was employed, the period of time it was so used, the. circumstances under which it was annexed, and the occurrences subsequent to the sale, by the register, the intention to make it a fixture may be reasonably drawn. This inference was left to the jury; and if the defendant apprehended that the charge might mislead them, as an instruction that such inference shouldhe drawn, he could have avoided this consequence by a countervailing explanatory or modifying charge.
The remaining charge, which was requested by plaintiff, asserts the proposition, that the contract of sale between the mortgagor and the defendant is void under, the statute of frauds, founded on the preliminary fact being ascertained, that the engine was a fixture. If such be the fact, the right of the plaintiff to a recovery is the same, whether the contract of sale was verbal or written, valid or invalid, as between the parties. Conceding that the charge is erroneous, for the reason, that strangers can not set up the statute of frauds to avoid a contract, or for any other reason, it did not, and could not, affect the right of the plaintiff, nor the liability of the defendant, which solely depended on the question whether the engine was a fixture, the other facts being undisputed.
Affirmed.