delivered the opinion of the court.
This is an action of trover, brought under the title of the vendor of a tract of land, against the vendee of the land, for a cotton gin, that was erected on the land and affixed to the gin house.
The court charged the jury, that if. the gin could be severed and removed without serious injury to the land or gin, that it *455would not pass under the deed, and they must find for the plaintiff.
The jury found a verdict for the plaintiff, and the defendant appealed in error to this court.
The original rule of the common law was, that every thing which was affixed to the freehold was subjected to the law governing the freehold. But in later times this rule has been greatly relaxed in favor of tenants, and in relation to fixtures erected for the purposes of trade. But as between executor and heir, and between the vendor and vendee, the original rule prevails, that whatever is affixed to the freehold passes with it.
In this case, the gin was erected in the gin house, and fastened to the house by nails and braces. It was therefore permanently attached and fixed to the freehold, and this is the true and certain criterion to determine whether it passed by the deed with the freehold. Walker vs. Sherman, 20 Wend. Rep. 636; 2 Kent’s Com. 3 ed. 345-6.
Any attempt to carry out the principle stated by his honor to the jury, would be attended with endless difficulty and uncertainty. If fixtures attached to the freehold may be removed, provided they can be severed without injury to the land, scarcely a case could occur in which they would pass by the deed.
Wfe think the court erred in the charge to the jury, and reverse the judgment and remand the cause.