M’CORMACK v. mums. 17
‘ To this report the plaintiff, McCormack, files exceptions, marked 1,
2, 3, 4, and 5. The defendant files exceptions numbered 1 and 2. The
second exception by the defendant, which is to the amount of rent al-
lowed McCormack,by the commissioner, is withdrawn in the written
agreement filed by the defendants counsel. The remaining exception is
for the failure of the commissioner to report certain judgments claimed
by the defendant to be liens on the land conveyed in trust. These judg-
ments were excluded, as thecommissioner states, for want of suliicient
proof. The court is of opinion that the report is correct in this respect,
and the exception must be overruled. .
The first exception filed by the plaintiff is for failure of the commis-
sionerto report what facts were, according to his view of the evidence,
proved,. The report is in conformity with therequirements of equity
rule No.76, and this exception mustbe overruled. For the same rea-
· son plaintiH"s exception No. 3 must be overruled. .
Plaintifi"s fourth exception is that the commissioner erred in allowing
the defendant, David E. James, charges for permanent improvements put
upon the property while held by him under his purchase from G. J. Hol-
brook, assignee of Hansford James, bankrupt. While it is true, as al-
leged in the exception, that this matter was not embraced in thedecree
of reference, yet the question is raised in the pleadings. The parties.
,plaintiff and defendant, examined witnesses as to the value of the im-
provements, and the plaintiff and defendant agreed to submit the same
toarbitration. They had the power to do this. It was a matter in con-
troversy, and the amount ascertained by the award was properly allowed
by the commissioner, and this exception must be overruled.
Plaintiffs fifth exception says: "The evidence shows that the trust
» debt was paid by Hansford James, and the commissioner should there-
fore have reported that there was no existing liability by reason of the
deedof trust." The evidence, in the opinion of the court, does not show
the debt to have been paid; and, granting that the testimony on this .
question was conflicting, it was the province of the commissioner to deter-
mine its weight and credibility. The exception will be overruled.
This disposes of all the exceptions filed by the plaintiff and the de-
. fendant, except the second exception filed by the plaintiff. This excep-
tion states two grounds which, it is asserted, should defeat the claim of
the defendant, David E. James, under the deed of trust of April 25, 1861.
The first is .“ that McCormack is an innocent purchaser for valuable con-
sideration without notice of the deed of trust." The second is "that the
defendant, David E. James, participated in the negotiations which eul-
minated in the sale to and the payment by McCormack of almost the en-
tire purchase money, and that David E. James is estopped, by his con-
duct, to assert his lien by deed of trust." . _
f As to the first ground of exception, there is no principle of law that
, would seem to be more firmly established by an unbroken line of decis-
ions than that a subsequent purchaser for valuable consideration without
notice, in order to be protected. must be a complete purchaser; that is,
a purchaser of the legal title, who, before notice of an unrecorded incum-
v.36F.no.1—-2 J ·