This cause was considered upon a former appeal, and tbe opinion of tbe Court is contained in 203 N. C., at page 205. Upon the former appeal tbe law of reformation and mutual mistake was fully discussed and applied to tbe facts then existing, and a new trial was awarded because of error in tbe instructions given tbe jury.' Tbe jury found that tbe plaintiff and tbe defendant, Horne, made an agreement that tbe bank’s lien securing an indebtedness of $15,000, should be a first lien upon tbe property, and that such agreement was omitted by tbe mutual mistake of Horne and tbe plaintiff’s agent, Marshbourn. Hence it must be determined whether tbe testimony of tbe defendant constituted sufficient evidence of mutual mistake, to warrant a submission of issues to tbe jury. Tbe following facts must furnish tbe basis for a proper solution, to wit: (a) Horne informed tbe president of plaintiff and its agent, Marshbourn, at tbe time of tbe negotiation that be bad given tbe bank a first lien on bis crop and that plaintiff’s paper would therefore be a “second mortgage.” (b) When tbe paper was drawn and presented to Horne for signature be objected to' tbe form of tbe instrument because it failed to mention or refer to tbe fact that tbe bank bad a first lien upon tbe property, (c) Thereupon plaintiff’s agent, Marshbourn, assured Horne that tbe omission of such a provision made no difference for tbe reason that registration would furnish tbe contemplated priority.
Obviously both parties contemplated at tbe time, that tbe deed of trust given by Horne to tbe bank should constitute a first lien upon tbe property. Moreover, tbe foregoing facts, together with all tbe surrounding circumstances disclosed by tbe evidence, are sufficient to warrant submission of tbe issues to a jury. See Bank v. Redwine, 171 N. C., 559, 88 S. E., 878; Story v. Slade, 199 N. C., 596, 155 S. E., 256.
There are other exceptions in tbe record, but they are not deemed of sufficient importance to overthrow tbe judgment.
Affirmed.