Bates, Judge,
delivered the opinion of the court.
This case was before this court in 1858, and is reported in 27 Mo. 188. It was then remanded to the Circuit Court, where the plaintiff filed a supplemental petition stating that Wilson had made a final settlement of the estate of Thomas Hempstead, showing a balance in his hands, which had been ordered to be paid to creditors whose claims were in the fourth class, (that is, to John Biddle,) and charging that that settlement was fraudulent as to plaintiff.
[138]*138The defendants answered the supplemental petition, denying fraud, &c.
The ease was then tried before the Judge of the Circuit Court, who gave a finding of facts and judgment as follows:
“ Now at this day come the parties by their respective attorneys, and, waving a jury, submit this cause to the court upon the pleadings and proof, and the court having duly heard and considered the same, doth find—
“ 1. That on the seventh day of June, eighteen hundred and twenty-three, a judgment was rendered in favor of the United States against Thomas Hempstead and Charles S. Hempstead, the complainant herein, for the sum of thirteen thousand four hundred and ninety-seven dollars and twenty-seven cents, on the official bond of said Thomas Hempstead, wherein said Thomas Hempstead was principal, and said Charles S. Hemp-stead was security.
“ 2. That said John Biddle obtained the control and ownership of said judgment, with power to release the same.
“ 3. That said Thomas Hempstead died and left one child only, a daughter, his sole heir, Cornelia V. Hemp-stead.
“ 4. That said John Biddle, on the 7th day of December, 1849, for good and sufficient considerations, one of which was the withdrawal .and dismissal of certain suits that had been instituted by the heir of Thomas Hempstead against the said Biddle and others, and the conveyance by the heir of Thomas Hempstrad to Biddle of two certain tracts of land, the subject of said suit, released by instrument of writing the heirs, executors and administrators of Thomas Hempstead from said judgment, except so far as might be necessary to use it for the protection of the title to the land which Biddle obtained by said conveyance from said heir.
“ 5. That said release was never entered of record, but was kept by the agent of said John D. Wilson; that said John D. Wilson was advised by counsel, and believed, that the paper called release was no release at all, and acted upon such hypothesis.
[139]*139“ 6. That said judgment was kept afoot in fraud of the complainant in this cause.
“ 7. That in the year 1848, said defendant, John D. Wilson, married the said Cornelia Y. Hempstead, the said sole heir of Thomas Hempstead.
“ 8. That, in June, 1850, letters of administration were granted to defendant Wilson, by the Probate Court in and for the county of St. Louis, State of Missouri, upon the estate of Thomas Hempstead.
“ 9. That in the month of March, 1851, the said judgment against said Thomas and Charles Hempstead was revived in favor of the United States, to the use of said Biddle, fraudulently.
“ 10. That said judgment so revived was presented in the Probate Court for allowance by the said Biddle; the same was fraudulently procured to be allowed, and was allowed on the 15th day of June, 1852, to the amount of $34,772.34, and placed in the fourth class of claims allowed against the estate of Thomas Hempstead, in fraud of the plaintiff’s rights.
“ 11. That at the March term, 1852, of said Probate Court, a claim was allowed by said court in favor of this complainant, Charles Hempstead, against the estate of Thomas Hemp-stead, amounting to $10,244.67, for money paid by this complainant upon the aforesaid judgment against said Thomas Hempstead and this complainant, and the said claim so allowed was placed in the fifth class of claims allowed against said estate of Thomas Hempstead.
“ 12. That no other claims have been allowed against, nor are any other debts owing by, said estate than the said judgment and allowances.
“ 13. That property to a large amount belonging to said estate of Thomas Hempstead came into the hands of said John D. Wilson, as administrator as aforesaid of said estate.
“ 14. That said Wilson, as administrator as aforesaid, procured an order from the said Probate Court to sell real estate belonging to the estate of said Thomas Hempstead, and that at the December term, 1852, of said Probate Court, in pursu[140]*140anee of said order, he sold such property, and recovered therefor the sum of 17,630; and that at the September term, 1855, of said Probate Court said Wilson sold the property belonging to said estate, for which he received the sum of $957.
“ 15. That nothing has ever been paid upon said judgment allowed in favor of said Biddle by said administrator of said estate.
“ 16. That at the March term, 1857, of said Probate Court, said defendant Wilson made a final settlement of his administrotion of the estate of said Thomas Hempstead, and that there remains in his hands $7,410.55 assets of said estate, of which sum $772 are the proceeds of sale of lands excepted in said instrument of release from the operation of said release.
“ 17. That there remains in the hands of the administrator, John D. Wilson, assets of the estate of Thomas Hempstead, the sum of $6,638.55, independent and exclusive of the proceeds of sale of said one by forty arpens of said land, and said one by five arpens of land, spoken of and excepted in said share.
“ 18. That the said Probate Court, at the time of said final settlement, ordered said Wilson to pay over said assets of said estate of Thomas Hempstead to the creditors of said estate whose claims had been placed in the fourth class of claims allowed against said estate.
“ 19. That said judgment allowed against the estate in favor of said Biddle is the only claim allowed in said fourth class, and is much more than enough to exhaust all the assets of the estate:
“ Wherefore, it is ordered, adjudged and decreed by the court, that the order made by the Probate Court, in and for the county of St. Louis, .directing said John D. Wilson, administrator of the estate of said Thomas Hempstead, to pay to the creditors whose claims allowed are placed in the fourth class the assets in his hands, be annulled, set aside and revoked, except the payment of $772; and it is further ordered, adjudged and decreed, that the judgment of $34,772.54 allowed [141]*141in favor of John Biddle, in the Probate Court in and for the county of St. Louis, against the estate of Thomas Hempstead, placed in the fourth class of claims allowed against said estate, be postponed to the claim allowed against said estate in favor of Charles S.
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Bates, Judge,
delivered the opinion of the court.
This case was before this court in 1858, and is reported in 27 Mo. 188. It was then remanded to the Circuit Court, where the plaintiff filed a supplemental petition stating that Wilson had made a final settlement of the estate of Thomas Hempstead, showing a balance in his hands, which had been ordered to be paid to creditors whose claims were in the fourth class, (that is, to John Biddle,) and charging that that settlement was fraudulent as to plaintiff.
[138]*138The defendants answered the supplemental petition, denying fraud, &c.
The ease was then tried before the Judge of the Circuit Court, who gave a finding of facts and judgment as follows:
“ Now at this day come the parties by their respective attorneys, and, waving a jury, submit this cause to the court upon the pleadings and proof, and the court having duly heard and considered the same, doth find—
“ 1. That on the seventh day of June, eighteen hundred and twenty-three, a judgment was rendered in favor of the United States against Thomas Hempstead and Charles S. Hempstead, the complainant herein, for the sum of thirteen thousand four hundred and ninety-seven dollars and twenty-seven cents, on the official bond of said Thomas Hempstead, wherein said Thomas Hempstead was principal, and said Charles S. Hemp-stead was security.
“ 2. That said John Biddle obtained the control and ownership of said judgment, with power to release the same.
“ 3. That said Thomas Hempstead died and left one child only, a daughter, his sole heir, Cornelia V. Hemp-stead.
“ 4. That said John Biddle, on the 7th day of December, 1849, for good and sufficient considerations, one of which was the withdrawal .and dismissal of certain suits that had been instituted by the heir of Thomas Hempstead against the said Biddle and others, and the conveyance by the heir of Thomas Hempstrad to Biddle of two certain tracts of land, the subject of said suit, released by instrument of writing the heirs, executors and administrators of Thomas Hempstead from said judgment, except so far as might be necessary to use it for the protection of the title to the land which Biddle obtained by said conveyance from said heir.
“ 5. That said release was never entered of record, but was kept by the agent of said John D. Wilson; that said John D. Wilson was advised by counsel, and believed, that the paper called release was no release at all, and acted upon such hypothesis.
[139]*139“ 6. That said judgment was kept afoot in fraud of the complainant in this cause.
“ 7. That in the year 1848, said defendant, John D. Wilson, married the said Cornelia Y. Hempstead, the said sole heir of Thomas Hempstead.
“ 8. That, in June, 1850, letters of administration were granted to defendant Wilson, by the Probate Court in and for the county of St. Louis, State of Missouri, upon the estate of Thomas Hempstead.
“ 9. That in the month of March, 1851, the said judgment against said Thomas and Charles Hempstead was revived in favor of the United States, to the use of said Biddle, fraudulently.
“ 10. That said judgment so revived was presented in the Probate Court for allowance by the said Biddle; the same was fraudulently procured to be allowed, and was allowed on the 15th day of June, 1852, to the amount of $34,772.34, and placed in the fourth class of claims allowed against the estate of Thomas Hempstead, in fraud of the plaintiff’s rights.
“ 11. That at the March term, 1852, of said Probate Court, a claim was allowed by said court in favor of this complainant, Charles Hempstead, against the estate of Thomas Hemp-stead, amounting to $10,244.67, for money paid by this complainant upon the aforesaid judgment against said Thomas Hempstead and this complainant, and the said claim so allowed was placed in the fifth class of claims allowed against said estate of Thomas Hempstead.
“ 12. That no other claims have been allowed against, nor are any other debts owing by, said estate than the said judgment and allowances.
“ 13. That property to a large amount belonging to said estate of Thomas Hempstead came into the hands of said John D. Wilson, as administrator as aforesaid of said estate.
“ 14. That said Wilson, as administrator as aforesaid, procured an order from the said Probate Court to sell real estate belonging to the estate of said Thomas Hempstead, and that at the December term, 1852, of said Probate Court, in pursu[140]*140anee of said order, he sold such property, and recovered therefor the sum of 17,630; and that at the September term, 1855, of said Probate Court said Wilson sold the property belonging to said estate, for which he received the sum of $957.
“ 15. That nothing has ever been paid upon said judgment allowed in favor of said Biddle by said administrator of said estate.
“ 16. That at the March term, 1857, of said Probate Court, said defendant Wilson made a final settlement of his administrotion of the estate of said Thomas Hempstead, and that there remains in his hands $7,410.55 assets of said estate, of which sum $772 are the proceeds of sale of lands excepted in said instrument of release from the operation of said release.
“ 17. That there remains in the hands of the administrator, John D. Wilson, assets of the estate of Thomas Hempstead, the sum of $6,638.55, independent and exclusive of the proceeds of sale of said one by forty arpens of said land, and said one by five arpens of land, spoken of and excepted in said share.
“ 18. That the said Probate Court, at the time of said final settlement, ordered said Wilson to pay over said assets of said estate of Thomas Hempstead to the creditors of said estate whose claims had been placed in the fourth class of claims allowed against said estate.
“ 19. That said judgment allowed against the estate in favor of said Biddle is the only claim allowed in said fourth class, and is much more than enough to exhaust all the assets of the estate:
“ Wherefore, it is ordered, adjudged and decreed by the court, that the order made by the Probate Court, in and for the county of St. Louis, .directing said John D. Wilson, administrator of the estate of said Thomas Hempstead, to pay to the creditors whose claims allowed are placed in the fourth class the assets in his hands, be annulled, set aside and revoked, except the payment of $772; and it is further ordered, adjudged and decreed, that the judgment of $34,772.54 allowed [141]*141in favor of John Biddle, in the Probate Court in and for the county of St. Louis, against the estate of Thomas Hempstead, placed in the fourth class of claims allowed against said estate, be postponed to the claim allowed against said estate in favor of Charles S. Hempstead placed in the fifth class, and that the said Wilson be restrained from paying over any of the assets remaining and found in his hands at the time of said final settlement to said John Biddle, except said 1772; and it is further ordered, adjudged and decreed, that said Wilson pay the said sum of 16,638.55 in payment of said claim and allowance of said Charles S. Hempstead, the complainant in this cause, so far as the same will go ; and that the complainant have execution for the same and his costs.”
When the case was here before, the only question was whether the court below properly rejected as evidence the paper supposed to be a release by John Biddle of a judgment of the United States against Thomas and Charles S. Hemp-stead, and this court held that the paper should have been admitted in evidence, upon the ground stated in Judge Scott’s opinion that thereby the judgment was released, except so far as it might be necessary to use it for the protection of the title to the land which Biddle obtained by his compromise with the heir.
This result was attained by an equitable construction of the instrument in connection with the attending circumstances. In the case as now appearing in this court, the pleadings are somewhat changed, and facts are shown which do not appear by the report to have been known to the court when formerly considering the case, and we are therefore required to examine the whole case anew.
The plaintiff’s claim is, that the judgment was released by John Biddle, and the court below has so found, except so far as it might be necessary to use it for the protection of the title to the land which Biddle obtained by conveyance from the hoir of Thomas Hempstead.
The terms of the instrument show that it is not an absolute release, but the judgment was to 'be kept in life and force for [142]*142certain purposes, and the court below has found'that the only exception to the release was for the protection of certain specific property, whilst the instrument itself declares that “ I (John Biddle) have the right of using said judgment against Charles S. Hempstead and his property, but with the exception of the whole of the said forty arpens, and of the said five arpens, I am not to use or enforce said judgment so far as the same can be made to affect the heirs, executors or administrators of the said Thomas Hempstead, or any property owned by them, or any of them, as such heirs or executors or administrators.” This exception is of the greatest importance, as it not only shows that the judgment was not released, but that the power was expressly retained to use the judgment against this very plaintiff, and so to use it as not to injure the heir or administrator of Thomas Hempstead. This may appear to have been very ungenerous in the heir of Thomas Hempstead who made the agreement with Biddle, but we are now regarding only the meaning of the paper itself, without regard to extrinsic facts.
Evidently this paper could not have been pleaded in bar of a revival of the judgment, and to call it a release is a misuse of the term leading to a confusion of ideas.
Discarding, then, the idea of a release of the judgment, we must still look to the instrument to ascertain its proper meaning and effect in reference to all the facts of the case and the persons affected by it.
It appears that Cornelia V. Wilson, the heir of Thomas Hempstead, was prosecuting suits against Biddle, and that Biddle had acquired the judgment of the United States against Thomas and Charles S. Hempstead, with the intention, it may be presumed, to use it in some way to defend or protect his title to the land for which he was sued by Mrs. Wilson, and that a compromise was made between them, and this instrument given by Biddle as a part of the consideration paid by him for the compromise. The paper was evidently intended only for the benefit of the heir of Thomas Hempstead, and the idea of any benefit to Charles S. Hempstead is expressly [143]*143excluded, and the paper is a covenant only not to use it to the detriment of the estate of Thomas Hempstead. It was a contract only between the parties to it, which they could act upon or not, or alter or rescind at their pleasure, and the plaintiff has no right to question their action, provided he be not injured or defrauded thereby. We must, therefore, inquire whether he has been injured or defrauded by the defendants. The Circuit Court has, in its finding of facts, found that the judgment was kept afoot in fraud of the plaintiff; that it was revived fraudulently, and that it was presented for allowance and allowed fraudulently. These findings of fraud were evidently based upon the erroneous notion that the instrument granted by Biddle was a release of the judgment for the benefit of’Charles S. Hempstead; but even upon that idea the evidence does not justify the findings, for the plaintiff had knowledge of the arrangement, and his brother, acting as his agent, expressed himself well satisfied with it, and made with Major Biddle a somewhat similar arrangement, whereby, for the payment of four thousand dollars, Biddle bound himself not to use the judgment against his property, with certain exceptions. The court below found that the administrator, Wilson, was advised by counsel and believed that the paper called a release was no release, and acted upon that hypothesis. Wherein his fraud consisted, it is impossible to see. Either of the allowances to the plaintiff and to Biddle against the estate of Thomas Hempstead is more than sufficient to absorb the whole estate, and the debt to Biddle being by law of superior merit to that owing to Charles S. Hempstead has rightful priority, and until that was wholly paid the plaintiff could have neither legal nor equitable right to any part of the assets of the estate. If Mrs. Wilson has by contract with Biddle induced him to accept less than the full amount of his judgment, the plaintiff has no right to complain of it, for he is not thereby injured.
If no contract had been made with Biddle, certainly the plaintiff could get nothing from the estate of Thomas Hemp-stead until Biddle’s claim was fully satisfied, and upon no [144]*144computation is it shown that the estate was sufficient to pay half of the debt to Biddle. He could have received nothing then, and there was, therefore, no possibility of his having been injured by the arrangement made between Mrs. Wilson and Biddle.
The judgment not being absolutely released at law, he can only claim that in equity and good conscience it should be postponed to his demand, and the case made does not show him entitled to such relief, for he is made no worse off by all that has been done. This is said without reference to the fact that he himself has procured Biddle’s covenant not to use the judgment against his property. When this fact is considered, it would appear grossly inequitable to hinder Biddle from collecting what he can from the estate of Thomas Hemp-stead.
The judgment of the court below will be reversed and judgment rendered by this court for the defendants.
Judges Bay and Dryden concur.