ON MOTION EOE BE-IIEABING-.
Philips, P. J.I. It is claimed that the creditors alone could complain of the fraudulent contract in question ; and that in this respect our opinion is in conflict with that of the supreme court in Steadman v. Hayes, 80 Mo. 323. This is a misconception of the attitude of the case at bar. The Steadman case but asserts the familiar rule, that in an action to set aside a - deed for fraud instituted by a third party, the defendant cannot interpose the fraud as a defence, when such creditors are strangers to the record. It does not hold that where A has conveyed his land to B, solely to defraud his creditors, in an action by A to recover this land, B may not plead the fraudulent purpose of the transaction. In such case the courts will afford no relief, but will leave the parties to the fraud- precisely where their mutual wrong has placed them. Brown’s Adm’r v. Finley, 18 Mo. 375. So in Hamilton v. Scull’s Adm’r (25 Mo. 165), it is held to be a good defence to an action on a promissory note that it was given in furtherance of an attempt to defraud defendant’s creditors.
*460. The action of the bar is founded on the fraudulent contract, and is an attempt by one of the parties thereto to enforce its provisions against the other party. The moment that fact appears the courts should close their doors against the complainant.
II. It is further suggested that this court overlooked the fact that the circuit court granted to plaintiff an instruction, to the effect that the contract in question is valid. The fact was not overlooked. It was not commented on in the opinion because of the well recognized rule that where the judgment of the trial court, on the whole record, is for the right party, and especially so where the court tries the case without the intervention of a jury, this court will not reverse the case because of some misconception of the law by the trial court. The plaintiffs were not entitled to the instruction accorded them. It does not lie in their mouths to assign for error on appeal that a verdict is inconsistent with a declaration of law wrongfully accorded at their instance. Crews v. K. C., St. Jo. & C. B. R. R. Co., Ante, P. 302.
Nor can we perceive the force of the objection, now interposed by this motion for are-hearing, that by the action of the court in so declaring the law respecting the validity of the contract, all questions of fraud were eliminated from the case, or that plaintiffs could thereby have been induced to forego the introduction of any evidence in its possession touching the integrity of the contract. This declaration of law, of course, was not made until all the evidence was in and both parties had rested. And as the vicious character of the contract appeared onthe’face of the contract itself, it was not competent for the trial court to bind this court by any construction it might give to its legal effect and character, so as to preclude us from affirming its judgment on the ground that on the whole record its judgment was for the right party. The defendant’s evidence tended to show that the contract was conceived in fraud. The plaintiffs did not controvert the fact; but relied upon their misconception of the law. By the record, as they left it, we determine their appeal.
*461III. It is also urged that we overlooked the facts that before the final trial in the circuit court the statute of limitation had run against any outstanding claims against the estate, and that all debts had been paid and the money distributed.
Waiving any discussion as to the legal effect of such fact on the contract, it is enough to say there is nothing in the record indicating that between the time of the execution of the contract and the expiration of the two years within which such claims might have been probated, the outstanding claims were not presented and allowed. As to the other facts assumed, the record wholly fails to show that all the debts had been paid or all the money had been distributed. The clear inference, on the contrary, from plaintiff’s evidence is, that the debts paid were those provided for in the contract; while the only money shown to have been distributed was that paid over to defendant. Nor is there anything in the record to preclude the inference that the money so received by defendant might not be called for by the administrator to respond to debts allowed against the estate.
IY. Counsel also call our attention to certain other proceedings had in one of the circuit courts on a controversy growing out of this contract between these same parties,, and the action of the circuit court thereon, and the fact that the issues therein are pending on appeal in the supreme court. These are wholly matters in pais, not appearing on this record. If they did so appear we possibly might feel embarrassed to differ from the nisi court, but certainly would not be concluded by any opinion it might entertain. And as to the supreme court, while we try to follow where it has led, we cannot do so by anticipation. We assume in advance that there will be no conflict between'its conclusion, arising on the same state of facts, and that reached by this court.
The motion for re-hearing, the other judges concurring, is overruled.