Present: All the Justices 

WARREN E. KELLEY 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 951503 

 June 7, 1996 

MICHAEL R. GRIFFIN, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jack B. Stevens, Judge 

 The dispositive issue in this appeal is whether a party 

seeking reformation and subordination of a deed of trust has 

standing to obtain such relief. 

 Warren E. Kelley filed a chancery suit against Samson 

Financial Group, Inc. (Samson), Michael R. Griffin, and various 

trustees, seeking to have a deed of trust securing Samson (the 

Samson deed of trust)1 set aside and declared null and void and 

to have a purchase money deed of trust securing Kelley (the 

Kelley deed of trust) restored to first priority. Samson filed 

an amended cross-bill, seeking reformation of the Kelley deed of 

trust and its subordination to the Samson deed of trust. 

 Following an ore tenus hearing, the trial court reformed the 

Kelley deed of trust and subordinated it to the Samson deed of 

trust. Kelley appeals. 

 The facts germane to the dispositive issue are undisputed 

and may be stated briefly. On June 30, 1993, Kelley and Griffin 

 entered into a written contract whereby Kelley agreed to sell 

and Griffin agreed to purchase certain unimproved real estate in 

Fairfax County. The contract provided for a first purchase money 

 

 1The party actually secured was Marc A. dos Santos who 

thereafter assigned the deed of trust to Samson. 
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deed of trust on the land securing Kelley in the payment of a 

note made by Griffin in the amount of $68,000, the balance of the 

purchase price. The contract also provided for the subordination 

of the purchase money deed of trust (the Subordination 

Provision). The Subordination Provision stated that the 

 deed of trust shall contain a provision requiring the 

trustees under [the] deed of trust, without the 

necessity of obtaining the prior consent of [Kelley], 

to subordinate the . . . deed of trust to any bona fide 

construction loan or loans placed from time to time 

upon the . . . property . . . or portions thereof. 

 Thereafter, Griffin, a builder, submitted a development plan 

to Samson, a construction lender. Samson agreed to make a 

construction loan to Griffin and informed Kelley that it "ha[d] 

committed to . . . Griffin financial backing regarding the 

[property]." 

 In October 1993, Kelley proceeded to settlement on the 

contract. A provision requiring subordination to any 

construction loan, however, was not included in the Kelley deed 

of trust. Kelley attended the settlement and afterward 

understood that he had a first lien on the property. 

 On the same day that Kelley proceeded to settlement on the 

contract, Griffin closed on the construction loan. Upon 

settlement of the construction loan, the settlement attorney had 

the Samson deed of trust recorded ahead of the Kelley deed of 

trust and had the word, "SECOND," typed on the face of the Kelley 

deed of trust. Kelley first learned of what the settlement 

attorney had done when Samson attempted to foreclose on its deed 
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of trust. This litigation ensued. 

 Kelley contends on appeal, as he did at trial, that Samson 

does not have standing to seek the relief requested in its crossbill because Samson was neither a party to the contract nor in 

privity with a party thereto. Samson concedes that it was 

neither a party to the contract nor in privity with a party 

thereto. Samson contends, nonetheless, relying upon Code § 55-

22, that it has standing as a third-party beneficiary of the 

contract. 

 Code § 55-22 reads, in pertinent part, as follows: 

 [I]f a covenant or promise be made for the benefit, in 

whole or in part, of a person with whom it is not made, 

or with whom it is made jointly with others, such 

person, whether named in the instrument or not, may 

maintain in his own name any action thereon which he 

might maintain in case it had been made with him only 

and the consideration had moved from him to the party 

making such covenant or promise. 

 Pursuant to Code § 55-22, therefore, a third party who 

claims to be the beneficiary of a contract between others need 

not be named in the contract. The third party, however, must 

show by the evidence that the parties to the contract clearly and 

definitely intended to confer a direct benefit upon him. Aetna 

Casualty v. Fireguard Corp., 249 Va. 209, 214-15, 455 S.E.2d 229, 

232 (1995); Ward v. Ernst & Young, 246 Va. 317, 331, 435 S.E.2d 

628, 635 (1993); Valley Company v. Rolland, 218 Va. 257, 259-60, 

237 S.E.2d 120, 122 (1977). A mere incidental beneficiary of a 

contract does not have standing to sue on the contract. 

Copenhaver v. Rogers, 238 Va. 361, 367, 384 S.E.2d 593, 596 
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(1989); Valley Company, 218 Va. at 260, 237 S.E.2d at 122; N.-P. 

Newspapers v. Stott, 208 Va. 228, 231, 156 S.E.2d 610, 612 

(1967). 

 Applying these principles of law in the present case, it 

becomes readily apparent that Samson was not a third-party 

beneficiary of the contract between Kelley and Griffin. Only 

Kelley and Griffin acquired benefits and assumed obligations 

under the contract, and, clearly, they did not intend to confer a 

direct benefit upon Samson. Indeed, Samson was a stranger to the 

contract, and there is no evidence that the parties considered or 

even knew about Samson when the contract was executed. It was, 

at best, an incidental beneficiary of the contract. Griffin, 

alone, has standing to seek enforcement of the Subordination 

Provision, and he has not sought to do so. Consequently, we 

conclude that the trial court erred in ruling that Samson had 

standing to seek reformation and subordination of the Kelley deed 

of trust, and we hold that the lien of the Kelley deed of trust 

is superior to the lien of the Samson deed of trust. 

 Accordingly, we will reverse and vacate the judgment of the 

trial court and remand the case to the trial court with 

directions that it take the appropriate action to ensure the 

superiority of the lien of the Kelley deed of trust.2

 

 2In his brief, Kelley contends that he is entitled to 

damages and requests a remand for an award of damages. Kelley, 

however, did not seek this relief in his pleadings, and, 

therefore, we deny his request. 
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Reversed and remanded.