majority">McCulloch, C. J.

The facts in this ease are undisputed. Appellee owned a tract of timber land in Union County, and conveyed the timber by deed to the Hardwood Dimension Lumber Company, there being a stipulation in the deed that the timber should be removed expeditiously within a period of time not exceeding seven years, and that the grantee should erect a saw mill on the land for the purpose of manufacturing the timber into lumber. A few months subsequent to the execution of the timber deed, and when the lumber company was about to begin performance, it was found desirable to erect the mill and the appurtenant houses and other buildings just across a creek from appellee’s tract of land on another tract owned by one Culpepper, it having been expressly agreed between appellee and the lumber company that the buildings should be left on appellee’s land at the expiration of the time allowed for removing the.timber and thus become the property of appellee, and an additional written contract was then entered into between appellee and the lumber company whereby it was agreed that the houses to be built on the Culpepper land should, at the expiration of the lease, become the property of appellee the same as if the houses had been built as originally intended on appellee’s land. The lumber company leased the land from Culp'epper under a written contract which stipulated that the houses built on the land should be and remain the property of the lessee and removable at the end of the lease.

Subsequently it was found necessary for the lumber company to lease an adjoining tract of land from one Wysinger to build houses on, and a contract was entered into between the lumber company and Wysinger whereby Wysinger leased the land to the lumber company with a stipulation concerning the removal of the houses similar to that contained in the Culpepper contract. There was a verbal agreement between appellee and the lumber company with respect to the houses to be built on the Wysinger land to the effect that they should become the property of appellee, in accordance with the original contract concerning the construction of the mill plant on the land of appellee. The lumber company, after putting the mill into operation and building numerous houses on the Culpepper and Wysinger lands to be used in connection with the mill plant, sold the mill machinery conditionally to Mrs. Josephine Shackelford and transferred the leases from Culpepper and Wysinger. Mrs. Shackelford subsequently assigned her interest to her husband, F. H. Shackelford.

Appellant is a judgment creditor of Shackelford and caused process to be levied on the houses on the Culpepper land and on the Wysinger land for the purpose of obtaining satisfaction of the judgment. Appellee intervened, and the controversy arises over the priority of their rights in and to these houses which were constructed on the lands aforesaid.

The time for removal of the timbér had not expired and the first contention of appellant is that appellee’s assertion of the right to the houses is premature. It is true that appellee could await the time of the expiration of the timber contract and then remove the houses as against the claims of all persons, but he was not bound to do so when a conflicting claim was asserted by another person.' The houses have not become a part of the realty on which they were built, but remain the personal property of the builder pursuant to the contract which reserved the right to remove them as trade fixtures. The title, as well as the immediate right to possession is involved in this controversy, and appellee can assert his rights now. If the property belonged to appellee, it is not subject to execution under a judgment against Shackleford, for the latter had at most only a right to occupy the houses while operating the mill under his purchase from the lumber company.

The next contention is that appellant’s contract, at least as to the houses on the Wysinger land, is within the statute of frauds and void. The contract between Wysinger and the lumber company, as well as the Culpepper contract, was in writing, and, according to its terms, the houses were to remain the property of the lumber company as trade -fixtures. The houses never became a part of the realty, but remained the personal property of the lumber company, which were, under the contract with appellee, to pass to the latter. Now, the contract between appellee and the lumber company with respect to the houses on the Culpepper land was in writing’, and there can be no question of the statute of frauds being involved in the controversy concerning those houses. The only question that arises on that subject relates necessarily to the houses on the Wysinger land. Those houses, not being a part of the realty, the statute of frauds concerning the sale or lease of lands does not apply. The houses constituted personal property and the only statute which could, under any circumstances, apply would be that which relates to the sale of chattels. Kirby’s Digest, section 3656.

The verbal agreement between the lumber company and appellee did not, however, constitute a contract for the sale of the houses. The original contract in writing between the parties provided for the sale of the houses which were appurtenant to the mill plant, and the verbal agreement referred to merely concerned the change of the contract from building the houses on appellee’s land or on the Culpepper land to building some of them on the Wysinger land. The verbal contract, in other words, relates merely to the place where the houses were to be built, instead of a contract with respect to the ownership of the houses themselves at the time of the expiration of the lease, for, according to the original contract, the houses were to become the property of appellee. That part of the contract, not in writing was one which was not within the statute of frauds.

The same answer may be given to the contention that the case falls within the clause of the statute which provides that a “contract, promise or agreement that is not to be performed within one year” must be in writing. Kirby’s Digest, sec. 3654, subdiv. 6.

We are of the opinion, therefore, that, the facts being undisputed, and the principles of law being favorable to appellee’s claim, the court was correct in giving a peremptory instruction. The judgment is therefore affirmed.

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