majority">Scott, J.,

delivered the opinion of the Court.

This is a suit in chancery by a bill, which states in substance, that in 1841, J. Navalles, the father of Louisa Ober, the wife of M. Ober, (who is a plaintiff,) and also of E. Navalles, a minor, who by her next friend is the other plaintiff, died in 1841, leaving two other daughters, Marie and Emily, who were respectively married lo Louis Howard and Louis Gouise, who with the wife of the said J. Navalles, with others, are made defendants to the bill. That the father, J. Navalles, before his death, and before the birth of the plaintiffs, was sued in an action of trespass on the case, and being fearful of a recovery of heavy damages against him, was induced to convey to a trustee for the use and benefit of his two daughters, the said Marie and Emily, who were then in existence, a certain lot of ground in St. Louis. That Navalles died possessed of other property, on which the two daughters last mentioned, with their husbands, had entered, and received the rents and profits, which amounted to a considerable sum. That the deed of trust was made for a fraudulent purpose. That the suit, whose pendency had induced Navalles to execute the deed of trust, resulted favorably to him. That from that time until his death he continued in the possession of the estate conveyed in trust, claimed it as his own, and. made valuable improvements on it. That his two daughters, the cestui que trusts, though of competent age, never interposed any claim to the trust property. That Navalles, conceiving the property to be his own, devised the same, and all his estate, real and personal, (except a lot and slave,) after the death of his wife, to all his children, to be equally divided among them. The lot and slave were devised to his daughter, Marie, one of the cestui que trusts. That the deed of trust was wholly fraudulent and void — that it was executed with a knowledge on the part of the trustee and cestui que trusts of its fraudulent design. That Navalles made his will under the impression that the trust property was his own. That since the death of Navalles, a partition has been made by a judgment of the Circuit Court, between the two eldest daughters and their mother. That the said complainants, the younger daughters, were not made parties to the proceedings, in consequence of which they were irregular and void. That Navalles believing the trust property to be his own, made his will under a mistake, and the lots conveyed in trust to the two eldest daughters, should be considered as an advancement to them. The bill prays that the deed of trust and judgment in partition may be set aside. That *427the cestui que trusts be made to account for the rents of the trust property, and that such decree may be made respecting the money expended in improving the trust property, as maybe equitable; and that if the deed of trust cannot be set aside, that the property thereby conveyed may be considered as an advancement to the eldest daughters.

The widow of Navalles, who was made a defendant, answered the bill, and filed a cross bill against some of the co:defendants, and made parties thereto of those who were notparties to the original bill and introducing matters foreign to those of the original bill. The other parties demurred to the bill, which demurrer was sustained, and the bill dismissed.

The bill itself admits, that the conveyance was made with a fraudulent design, and it is impossible to see on what grounds the attempt to set it aside can be sustained, even admitting the cestui que trusts were participes fraudis. The rule potior est conditio defendentis, applies. No man is entitled to the aid of a court of equity, when that aid becomes necessary by his own fault. The complainants coming in as heirs of their parents, being mere volunteers, cannot claim any greater advantage than their ancestor.

If the complainants were not made parties to the proceeding in partition, any interest they may have in the land is not thereby affected. As to them the procedure is a nullity, and no bill in equity is necessary to set aside.

This court cannot undertake to correct the will of a testator. Whether a case of election may not arise out of the transaction we will not now determine, as it is not presented by the bill. Nor is the matter of the bill so stated as to give rise to the question whether the lot to the eldest daughters can be regarded as an advancement. It is well settled that the relief granted in equity, must be according to the case made by the bill and not to the prayer; the prayer is disregarded, unless the facts stated warrant it.

A.s to the cross bill filed by the wife of Navalles, she had a right to do so against the complainants and her co-defendants. But a cross bill cannot introduce new and distinct matters not embraced in the original suit. As to such matters it would be an original bill. Story’s Equity Pleading, sec. 892-401.

The other Judges concurring,

the decree will be affirmed.

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