Alexander & Co. v. Newton

2 Va. 266

• Court: Supreme Court of Virginia
• Decided: July 15, 1845
• Status: Published

Opinion

Cabell, P.

delivered the opinion of the Court.

The Court is of opinion, that it is clearly proved that it was agreed between the appellants Alexander Co. and the appellee Robert Steele, the grantor in the deed of trust to John Newton, of the 3d of July 1837, that the said deed should be so drawn as to secure to the appellants the payment of the debt due to them by the said Steele before and in preference to all other debts intended to be secured by the said deed—that it was the intention of the said Steele that the said deed should be so drawn as to secure that preference, and that the ornission so to draw it, proceeded from the mere mistake of the draftsman thereof. The Court is therefore of opinion, that the decree is erroneous in not directing the payment of the said debt to the appellants, before and in preference to all others. So much of the said decree as is thus declared to be erroneous is reversed with costs, to be paid out of the trust fund, and the residue thereof is affirmed; and the cause is remanded to be proceeded in to a final decree according to the principles of this opinion and decree.