¶1(after stating the facts). The real question involved in this case is whether the plaintiff, on the day the writ of replevin was issued, was entitled to the possession of the property taken upon the writ. Recognizing this, the learned circuit judge charged the jury in part as follows:
“2. One of the questions in the case is whether or not all of the equipment of the factory is to be treated as real estate and covered by O’Dell’s mortgage. Or, if not all of it, then what portion of it shall be so treated.
“3. So far as the rule applicable to this question is concerned, property thoroughly fastened to real estate *263has been often treated by the courts as personalty, and property quite detached from the real estate has been treated by the courts as real estate, because essential to the operation of the property or plant mortgaged, and because of such an arrangement having been made between the parties. I think the rule to be applied to any given case may be arrived at by an answer to the question: What was the intent of the parties to the case being tried as to its treatment?
“4. And in this case you will ask yourselves this question: What did these parties intend, when the $8,000 mortgage was executed; what was to be the rule as to the treatment of the property placed in the factory that was to be erected, by an understanding between the parties, upon this 85 -acres of land' in question? And when you have arrived in your own minds as to what you believe the intentions of these parties were, that is the end of your consideration of that proposition. If they intended that all the equipment of the factory was to be treated as a part of the real estate, and property covered by the mortgage, then the defendant in this case cannot be heard to say that he did not own the property and that some one else did own it, as against the man to whom he gave the mortgage.
“5. If the understanding was that all the equipment of this factory was to be treated as a part of the building (as real estate, in other words) and was to be covered by this mortgage, then you are to, treat it all as covered by the mortgage and render a verdict for the plaintiff as to all the property taken on the writ, except such as you may find to have been taken, if any, that was not intended to be a part of the equipment or covered by the understanding of the parties in the case; bearing in mind that unless you are satisfied by a preponderance of the evidence that it was to be treated as covered by the mortgage you will find for the defendant as to all property owned by him that was not fastened to the real estate, or a part of it.”
¶2Defendant assigns error thereon.
¶3The record, we think, shows without dispute that the property described in the writ of replevin was *264personal property in no way affixed to the freehold. Neither the plaintiff nor the defendant nor any witness for either party testified that in loaning the money, either the bank who took the first three mortgages, or the plaintiff who took the fourth, had any agreement, either verbal or written, with defendant that the mortgage should cover the personal property used in the grape juice plant; nor does it appear that the money was advanced by either of the mortgagees to the mortgagor for the purpose of purchasing equipment for the plant. Neither the mortgage given to the bank which was foreclosed by the bank and from which redemption was made by the plaintiff, nor the mortgage running to the plaintiff himself, contains any intimation that the security covers any personal property. So far as the situation is disclosed by the' evidence in this record, it is, we think, plain, that as between plaintiff and defendant, on the day the writ was issued, the defendant was entitled to the possession of the goods replevined. Counsel for plaintiff seem to place some reliance upon the correspondence quoted above. We do not think these letters can be construed as a surrender either of title or the right to possession of the property by the defendant. As we view this record, there was no evidence tending to show that either the plaintiff’s mortgage or that given by defendant to the bank which was foreclosed, covered the property in question, it was therefore error to submit that question to the jury. The court should, as requested by counsel for defendant under the testimony as it then stood, have directed a verdict in favor of the. defendant.
¶4The judgment is reversed, with costs, and a new trial ordered.