majority">McCLELLAN, J.

— This is an action of detinue to recover an automobile, instituted by the appellant against the appellees. The cause was tried on the theory and defense asserted by Brown; the other party defendant, the company, being accorded a judgment on its plea of disclaimer. The plaintiff is the son of J. N. Martin, with whom he was associated in business in Birmingham. J. N. Martin and J. D. Brown, the defendant, on September 14, 1913, entered into a contract to exchange the automobile in question for Brown’s equity in a house and lot in Ensley. -Brown’s lot was incumbered with a mortgage for $3,000. The parties agreed the value of the lot to be $3,750, thus fixing the monetary equivalent of the automobile at $750. On September 17, 1913, J. N. Martin gave' a written order to the representative of the Great Southern Automobile Company to deliver the car to J. D. Brown. This order recited an agreement by J. N. Martin to refund to Brown the charges for repairs made by it on the car, and further recited this: “Said car traded to Mr. Brown for house and lot in Ensley Highlands * * * having received paper on house. Title of this car passes into the hands of Mr. J. D. Brown.”

Brown received the car from the company, giving his promissory note to the company for the amount of the charges. It appears without dispute that J. N. Martin afterwards paid this note in full. Subsequently, on view of an abstract furnished by Brown, Martin’s attorney discovered, that Brown’s interest in the Ensley lot was confined to the surface; the mineral interest having been severed in ownership from the surface.

*137(1) Where an agreement for the sale or exchange of lands is silent as to the nature and character of the estate or interest to be sold or conveyed, the presumption arises that an indefeasible legal title to the unsevered estate in the soil is what is intended to pass and to be acquired. — Goodlett v. Hansell, 66 Ala. 151; Taylor v. Newton, 152 Ala. 459, 44 South. 583. While the contract entered into between J. N. Martin and J. D. Brown expressly recognized the existence of an incumbrance present in the outstanding mortgage referred to, yet there was nothing in the agreement that operated to qualify or negative the just expectation on the part of Martin that the fee-simple.title, unaffected by a separate ownership of the mineral interest therein, would be conveyed to him by Brown, thus requiring the application of the presumption to which allusion has been made. In charge 4, given to the jury by the court at the request of the plaintiff, this applicable rule of law was appropriately stated. However, in response to subsequent inquiry from the jury the court withdraw this charge from the jury’s consideration, and indorsed it as being refused. Immediately following this action by the court the jury was advised that it "was their function “to say what the contract meant.”

(2) In withdrawing charge 4 from the jury’s consideration and in refusing to givé it to the jury,- as well as in its act of referring the construction of the contract to the jury, the court erred to the prejudice of the plaintiff. It was the duty of the court, itself, to construe the contract shown by the evidence with the view to the application of the rule of law to which charge 4 had particular reference. If the contract made between Brown and J. N. Martin was not performed in any degree by Brown, it is very clear that Brown was not entitled to retain the automobile of which he had acquired the possession as upon an exchange of his equity in the-fee of the Ensley lot. If Brown delivered a conveyance to J. N. Martin, transmitting his equity in the surface only of the Ensley lot, and Martin accepted a conveyance of that character, then the plaintiff could not recover the automobile given in exchange therefor.

(3) The trial court gave, at defendant’s instance, special charges numbered 3, 4, 5, 7, and 8, upon the theory that the plaintiff was estopped to assert his title to the automobile by his acquiescence in J. N. Martin’s assertion to Brown of his, J. N. Martin’s, ownership of the car. As abstract propositions of law, *138these instructions were well framed; but, unless Brown suffered' a loss of substantial character, or was induced to alter his position for the worse in some material respect, the estoppel referred to in these instructions was not available to prevent the plaintiff from asserting his ownership in the automobile. — Brooks v. Romano, 149 Ala. 301, 306, 42 South. 819.

For the error indicated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and Sayre and Gardner, JJ., concur.

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