¶1*316The opinion of the court was delivered by
¶2The defendants in error manufactured a steam-engine for Philip Koehler, and before it left their shop took a chattel mortgage upon it for the payment of the purchase-money, with a stipulation in the mortgage, of their right to take possession of the engine whenever they might deem themselves insecure, or in default of payment, and remove the same from the mill, whether it should be attached to the realty or otherwise. Eaves, the plaintiff in error, having become the purchaser of the mill and lots under a foreclosure of a mortgage thereon made prior to the placing the engine therein, claims the engine as a part of the freehold, as against the rights of defendants in error as mortgagees. Eaves had actual and constructive notice of the existence of the mortgagp-^nd^ckúmlñff^d^ when he bought the property, The district court held that the defendants in error were entitled to the engine under their mortgage, and this decision presents the only question in the case. As a general rule, improvements on real property inure to the mortgagee as part of his security - but whether any given piece of property becomes so attached to the freehold as to-make it a part thereof, is frequently a question of great difficulty. From the very nature of things it is oftentimes most embarrassing to determine when a piece of property, personal in its original character, becomes a fixture by reason of its use in connection with the freehold. And the best guides for the determination of such questions, are, to ascertain whether the property is actually annexed to the freehold, to consider the use to which it is appropriated in connection with the freehold, and what was. the intention of the party — whether it was his purpose to make it a permanent accession to the freehold, or otherwise, “this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made.” Teaff v. Hewitt, 1 Ohio St., 530. Testing *317this case by these principles, and we have no doubt that the decision of the district court was correct. The engine when built, and at the shop of builders, was unquestionably personal property. Under the light of adjudicated cases, and having no regard to the terms of the chattel mortgage, it may well be doubted whether it ever became a part of the realty as between vendor and vendee. See Walker v. Sherman, 20 Wend., 636; Vanderpool v. Van Allen, 10 Barb., 157; Holmes v. Tremper, 20 Johns., 29; Swift v. Thompson, 9 Conn., 63; McKim and Kennedy v. Mason, 3 Md. Ch., 189; Fortmen v. Goepper, 14 Ohio St., 564. But when we consider the purpose of the parties, as evinced by the mortgage, to make the engine retain the character of a chattel, regardless of the manner of its attachment to the mill, and as the mortgage violated no principle of law, wrought no injury to the lights of any, and was in the interest of trade, we have no doubt that the engine continued to be personal property. See the cases referred to in the brief of defendants in error. It is not intended to decide that parties can by any arrangement make property either real or personal as they may choose. “It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot in general be changed by the convention of the parties. Thus, it would not be competent for parties to create a personal chattel-interest in a part of the separate bricks, beams, or materials of which the walls of a house are composed. Bights by way of license might be created in such a subject, but it could not be made alienable as chattels, or subjected to the general rules by which the succession of that species of property is regula- • ted. But it is otherwise with things which being originally personal in their nature are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of, or material injury to, the things real with which they are connected, though their connection with the land or other real estate is such that in the absence of an agreement, or of any special relation between the parties in interest, they would be *318part of the real estate.” Ford v. Cobb, 20 N. Y., 348. So-in this case, if the manner of the attachment of the engine to the mill is such as to leave the mind in doubt or uncertainty as to whether it became a part of the freehold, Ave may look to the intention of the parties as controlling. This is constantly done in cases betAveen landlord and tenant, Avhere improvements for the benefit of trade are held as personalty, which as between vendor and vendee would pass as realty. It is said that the tenant could not have intended the improvement as an accession to the freehold, and this intention is derived solely from his limited estate in the rented property. In this case the parties have declared that the engine-shall retain its character of personalty; and the facts in the case do not overcome the inference drawn from the contract. It is not an inference drawn solely from the relation of the parties, or the nature of the estate, but a positive stipulation made by the parties. The intent is not inferred from facts, or left in doubt. That intent Avas that the engine should continue personal property, and we think it retained that character; and therefore the judgment is affirmed.