
94 S.E.2d 308 (1956)
244 N.C. 451
C.F. FLEISHEL
v.
J.C. JESSUP, P. W. Jessup and Arnoid T. Jessup.
No. 103.
Supreme Court of North Carolina.
September 19, 1956.
*310 Henry A. Grady, Jr., Raymond E. Dunn, New Bern, for defendants appellants.
B. B. Hollowell, Bayboro, R. E. Whitehurst, New Bern, for plaintiff appellee.
WINBORNE, Chief Justice.
See former appeal 242 N.C. 605, 89 S.E. 2d 160.
Appellants now present, among others, as involved on this appeal, these questions: Where defendants in their answer allege that certain property designated in the deed of trust as "machinery and equipment and other personal property" was actually affixed to and a part of the real property described therein (1) was an issue of fact raised, and (2) did the court err in refusing to admit oral evidence as to the nature and kind of the property, so as to determine whether it was real or personal property? These questions are predicated upon assignments of error two and three on exceptions duly taken in the course of the trial.
Manifestly, the trial court considered that an issue was raised, as indicated by the first issue submitted to the jury. Indeed upon the former appeal this Court stated that "the determination of the issue as to whether the enumerated structures were real property or personal property and the value of the land at present must await the sale * * * The court may then determine the amount of the deficiency judgment, if any, to which plaintiff is entitled and the other questions and issues raised by the pleadings."A sale seems to have been had, and the parties agreed as to the value of the naked land. But the court excluded all the evidence sought to be elicited by defendants upon cross-examination of plaintiff, and to be produced on direct examination of witnesses for defendants, bearing upon the question as to whether the enumerated structures, or any of them, were actually affixed to, and a part of the freehold, and the value thereof.
In so doing, this Court holds there was error. Hence the second question above stated merits an affirmative answer. Honce v. Smith, 105 N.C. 322, 11 S.E. 373; Moore v. Valentine, 77 N.C. 188; Bryan v. Lawrence, 50 N.C. 337. Compare Springs v. Atlantic Refining Co., 205 N.C. *311 444, 171 S.E. 635, 110 A.L.R. 474, where the Court treats of cases between landlord and tenant not involved here.
In Horne v. Smith, supra, quoting from Elwes v. Mawes, 2 Smith Lead. Cas., note, p. 267, this Court said [105 N.C. 322, 11 S. E. 374]: "`It is a well settled principle of common law that everything which is annexed to the freehold becomes part of the realty. Although when the ownership of the land and of the chattel is vested in the same person, or when the owners of both concur in a common purpose, the presumption that a chattel is made part of the land by being affixed to it may be rebutted, yet the evidence must, as it would seem, be in writing under the statute of frauds, or else consist of facts and circumstances of a nature to render writing unnecessary, by giving birth to an equity or an equitable estoppel.'"
Thus defendants contend, and we hold rightly so, that they are entitled to present to the jury, and have the jury decide the question of what proportion of the value of all the property was actually real estate, and that, then, as to such proportion, plaintiff may not secure a deficiency judgment under the provisions of G.S. § 45-21.38.
While the rule may be different between a landlord and tenant, as recognized by this Court, it is declared in Horne v. Smith, supra: "But, as between vendor and vendee, the common law that articles of personalty affixed to the freehold are a part of the realty, and pass by a conveyance of the latter, is enforced in full vigor."
Nevertheless, if at the time of the purchase and sale the parties agree that the property or parts thereof affixed to the soil should be considered personal property, then under such circumstance the intent of the parties would prevail. However this intent could only be shown by writing.
For error pointed out, let there be a New trial.
JOHNSON, J., not sitting.
