delivered the opinion of this court.
The bill in this case was filed for the purpose of having corrected an alleged mistake in a deed, executed on the 17th day of October 1837, by the defendants to the complainants and another, now deceased, as trustees. The bill sets out that the citizens of a particular neighborhood being anxious to erect a school-housej agreed with the defendants for the purchase of the land mentioned in the deed, “and that it was fairly and distinctly understood between the said Peter Showman and wife, and the said neighbors, parties to the said arrangement, that the said purchase was of the fee-simple,” “and the said deed was to be executed, conveying to the said trustees the said piece of land in fee-simple.” It also alleges, that although the deed was intended to convey the fee-simple, it “has, by the mistake of the draftsman of the said deed, in omitting to insert therein the apt and legal words of inheritance, been drawn and executed in such form as to convey only a life estate to the said trustees and the successors or survivor of them.”
The defendants, in their answer, ‘•'utterly deny that the said deed was intended to be anything other than it was, or that it was intended to convey to the said grantees, as individuals, or in their own right.” And they also “deny that there was any mistake in the drawing of said deed. ’ ’
The only witness whose testimony can be deemed important to the inquiry submitted tons is that of John Brantner, the draftsman of the deed. He says, in reply to the fifth interrogatory propounded to him, that “the neighbors were all assembled on the ground which had been marked out for the school-house, and Showman being there, he, (Showman,) remarked, “that trustees should be selected in order that the deed might be made. The persons present then immediately elected Messrs. James Malone, (now deceased,) Daniel Miller and Henry Nykirk, the trustees. After the election of the trustees, this deponent, at the request of Showman, wrote the deed; and this deponent saith, that he understood Showman to say and agree that the property was to be conveyed to the trustees and their successors forever. There was nothing in the instructions by Showman that showed any intention that *485the property conveyed in the deed was ever again to return to Showman.”
Although a court of equity will, upon proof of fraud, mistake or surprise, raise an equity by which an ag’reement will be rectified according to the intent of the parties, it will not interfere where the instrument is such as the parties themselves designed it to be. If they voluntarily choose to express themselves in the language of the deed, they must be bound by it. McElderry vs. Shipley, et al., 2 Md. Rep., 35.
In t!ie case before us, the aid of the court is invoked exclusively on the ground of mistake. There is no allegation in the bill, of fraud. Where fraud is relied upon, it is essential that it should be averred. In the case of mistake, the Court of Appeals, in the case of Watkins vs. Stockett, 6 Harris & Johns., 445, adopting the decision of Lord Thurlow, in Irnham vs. Child, 1 Bro. Ch. Rep., 92, observe, “that the proof of a mistake should be established as much to the satisfaction of the court as if it were admitted, and that the difficulty of doing this is so great, that there is no instance of its prevailing against a party insisting there is no mistake.”
The defendants in the present case “utterly deny” there was any mistake in the character of the deed, and insist it was what it was intended to be. The testimony of the draftsman does not in anywise show a different intention, but merely declares he did not understand the property was ever again to come to the appellants. He does not say he was so told by either the appellants or any one else, but merely gives an opinion to this effect. Such evidence surely falls far short of the fullness required where an alleged mistake is sought to be proven and rectified.
But it is said the deed, on its face, shows that the grantees were to hold the property in trust, and in such a case a court of equity will look to the surrounding circumstances to ascertain the true intention of the parties, and when discovered will give them the proper form.
The doctrine on this subject was most fully and elaborately examined by Chancellor Kent, in the case of Gillespie vs. Moon, 2 Johnson’s Ch. Rep., 585. The learned chancellor, *486whilst he held that all the cases required the evidence to be full and strict, deduced from them the practical rule, that if the mind of the court be satisfied, then the requisition is complied with.
In the present case there is abundant evidence to show to the satisfaction of the court the real intention of the parties. In the first place, the grant is to the trustees “and their successors forever.” Second, the conveyance is to them, “their successors and assigns.” Third, the covenant for further assurance contains the necessary words of perpetuity — “their heirs.” It is true, these words, as they stand in the covenant, are applicable to the grantor and wife and not to the grantees, but this is manifestly and undeniably an error. The intention of the covenant could not have had any other purpose than to assure the grantees, whereas, from unaccountable error, it is made applicable to the grantors, which is nothing short of positive nonsense. This error was not only not denied by the counsel for the appellants, but, as he was compelled to do, conceded by him.
The deed on its face shows, that the property was designed to be parted with forever; and also, that it is now in the power • of the grantees to continue the trust by assigning it from time to time. These circumstances, when taken in connection-with the covenant for further assurance — which, if reformed,would bind the grantors to give a deed in fee-simple — and the further fact, that a good title was to be given and that a fee-simple price was paid for the land, show satisfactorily enough to the mind of a court of equity what was the real purpose of the parties. In the case of Terrett and others, vs. Taylor and others, 9 Cranch, 53, the Supreme Court, in a case similar to this, said: “It would seem, therefore, the present deed, (the one in that case,) did not operate by way of grant to convey a fee to the church wardens and their successors; for their successors, as such, could not lake; nor to the church wardens in their natural capacity; for ‘heirs’ is not in the deed. But the covenant of general warranty in the deed binding the grantors and their heirs forever, and warranting the land to the church wardens and their successors forever, may well operate by way of estoppel to confirm to the church and its privies the *487perpetual and beneficial estate in the land.” The same doctrine was recognised in the case of Mason vs. Muncaster, 9 Wheaton, 445. In that case a bill in equity had been filed to rescind a purchase made under the decree in the case of Terrett vs. Taylor, upon the ground that the title to the property was defective and could not be made by the vestry and other persons, who were parties to that suit. But the court held that a sale by them of the church lauds, with the consent of the minister, under the decree, conveyed a good title to the purchaser. The decree in Terrett vs. Taylor recognised the right of sale because of the general warranty in the deed. In the case before us, the deed contains not only a warranty, but also a covenant for further assurance. These constitute an estoppel and entitle the grantees to a decreed for specific performance, for it is manifest, the covenant for further assurance was intended to be to the grantees and (heir heirs, and not to the grantors.
We think the right and justice of the matter is clearly with the complainants, and that a decree ought to be signed requiring the execution of a deed in fee by the appellants to the appellees, in trust, for the purposes originally contemplated.
Decree affirmed.