Brunner v. Isom

In this appeal the cross-petitioners pray for the enforcement of a trust arising from technical covenant to stand seized to uses made by John Leopold in an ante-nuptial agreement entered into between him and Frederica Kuhnberger in 1864, for her benefit and that of children by the former marriage of each and by their contemplated intermarriage. Leopold subsequently by warranty deed sold the land described in that agreement to the present occupants, or their predecessors in title. The abstract of title which was furnished to the purchasers omitted mention of said agreement, and they bought without actual notice of it. The circumstance that Leopold’s wife did not re*416lease her dower does not, we think, raise any presumption of such actual notice.

The record of the ante-nuptial agreement would, however, operate as notice in law, if that instrument were legally recordable. It has already been held by this court in Barlag v. Leopold, (not reported), decided February 4, 1903, that said agreement created no legal estate, nor any right that would everripen into a legal estate, but one cognizable only in equity. In England, by operation of the statute of uses, deeds of bargain and sale and covenants to stand seized to uses, created equitable estates that were eo instanto transmuted into legal estates. But if the statute of uses was ever effective to that end in this state, as indicated perhaps by Sec. 3 of the Ordinance of 1787, it was only temporarily and until that method of conveyancing should be supplanted by the forms of instruments for that purpose now long familiár to us under legislation, the early enactment of which the ordinance itself contemplated. From a very early day, therefore, the statute of uses has been understood to be of no force in Ohio. Thompson v. Gibson, 3 Ohio, 339; Helfenstene v. Garrard, 7 Ohio (pt. 1), 275; Stilley v. Folger, 14 Ohio, 610, 650; Carroll v. Olmstead, 16 Ohio, 251; Crawford v. Chapman, 17 Ohio, 449; Urmey v. Wooden, 1 Ohio St. 160; Williams v. First Presbyterian Society, 1 Ohio St. 478; Thompson v. Thompson, 17 Ohio St. 649.

This antenuptial agreement, therefore, created no legal estate whatever, and in law, as distinguished from equity, the land described in it was neither encumbered nor affected.

At the time the antenuptial agreement was recorded and until after the making by Leopold of the conveyance under which the present occupants claim title, the recording statutes in Ohio, S. & C. 458, Sec. 1, and par. 467, Sec. 8, applied only to instruments by which lands, tenements or hereditaments are “conveyed or otherwise affected or incumbered in law.” They had no application to instruments relating only to equitable estates. Churchill v. Little, 23 Ohio St. 301.

It follows that the antenuptial agreement under which the crosspetitioners claim, was not a recordable instrument and the actual record thereof was not of itself notice affecting the present occupants’ title. Their predecessors in title were purchasers *417for value and without notice and took free of the trusts raised by said agreement.

This conclusion renders unnecessary any examination of the questions made under the statute of limitations. The cross-petition is dismissed, and decree may be entered accordingly.