The action is not brought to remove a cloud on the plaintiff’s title. So far from, it is among other things to have her title cancelled and set aside. The gravamen of the complaint is the fraud committed upon the plaintiff by Crane and W. A. Freyer, by which she was induced to cancel her bond and mortgage against Crane and wife, receive a conveyance of the premises from W. A. Freyer, and give her bond and a mortgage on the premises to Crane for $245.58 and her promissory notes amounting to $154; and the prayer of the complaint is, in substance, to have the satisfaction of the bond and mortgage given by Crane and wife to her canceled, and the mortgage adjudged to be in full force; her bond and mortgage to Crane, and the conveyance of the premises to her by W. A. Freyer and wife adjudged null and void; that Crane and W. A. Freyer be adjudged to pay her $154 and interest; and that the mortgage from Crane and wife to her be foreclosed, &c.
The allegations of the complaint show that she has acquired a perfect title to the premises as against John Freyer and his creditors, and no complaint is made that her pur~ *88chase was a hard or unconscionable one; that she agreed to pay too much for the land; or that it was not made voluntarily on her part. It is positively averred in the complaint that the plaintiff took her deed from W. A. Freyer and wife in ignorance of the former deed from Crane and wife to John Freyer, which last deed has never been recorded. The deed from W. A. Freyer and wife to the plaintiff was duly recorded, a few days after it was given ; and although, I believe, it is not positively stated that she has taken possession of the premises under the deed, yet such is the fair inference from the allegations in the latter part of the complaint. The only imaginable hindrance or objection to her title is the prior conveyance from Crane and wife to John Freyer. If she took her deed from W. A. Freyer in good faith and in ignorance of that conveyance, she is protected by the recording acts against it. If she knew or had notice of it she has only to charge her misfortune to her own folly, and the court will not relieve her. She has a perfect record title, if her statements are to be taken as true. The case is to be treated as if Crane, at the time he conveyed to W. A. Freyer, owned the premises or had never conveyed them. Sis conveyance to John Freyer is void as to the plaintiff, and does not and never can operate as even a color or shadow of title in any one, as against the plaintiff’s title. She has not therefore been damnified in any sense that a court of equity can recognize, which is indispensable to her right to maintain this action.
[Monroe General Term, September 7, 1863.For these reasons, and those stated in the opinion of the learned referee, I think the judgment should he affirmed.
Ordered accordingly.
E. Darwin Smith, Johnson and Welles, Justices.]