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death of the defendant; a number of authori. | roneous. The proceedings in the case are not ties sustain the contrary position.
final until the property is sold, and the proThe party defendant has a right to come in ceedings of sale confirmed by the court. The efter a sale and object to it, if anything in equity of redemption continues until the sale the proceedings has been irregular or illegal. of the property and the ratification of the sale. If the return to the order of sale had stated A party who has a decree of foreclosure in his that all the parties were dead, would the court favor, in proceedings on a mortgage, cannot have confirmed the sale! By the laws of Ken- hold the property under the decree. By the tucky the defendant has a right to point out decisions of the courts of Kentucky, a sale of what part of the estate may be sold under an the mortgaged premises must be made, and the order of sale. The necessity of the presence of residue of the proceeds of the sale, after pay the defendant at the sale is therefore apparent. ment of the debt, must be paid to the moru. Both Breckenridge and Whiting were dead at gageor. Suppose part of the estate sold and the time of the sale, and yet the sale was con- the mortgage satisfied; does not the residue befirmed. The decree confirming the sale should long to the mortgageor? This shows a con. therefore be opened, and the parties now before tinuing interest in the property mortgaged, the court should be allowed to come in and until the proceedings of sale are completed. redeem. Allen v. Belcher et al. 2 Hen. & Mun. Mr. Sergeant, for the appellees: 595; also Mackey v. Bell, 2 Mun. 523; Lovell v. The objections by the appellants are to the Dana, 2 Mun. 367; Forman v. Hunt, Ibid. 622. sale of the property. The first matter to be
The interest in the complainants is sufficient noticed is, that the interests of the land sold for a bill of review. 4 John J. Marshall's ke under the decree of foreclosure, ha essential. ports, 500. This case shows that a bill of re- ly changed. The property has been sold with. view will lie in such a matter as that now pre-out warranty, and large and expensive build, sented to the court.
ings have been erected upon it. This is stated This case will be decided by the cases which in the answer of the Bank of the United States have been decided in the courts of Kentucky. to the complainant's bill, and in the agreed In Kentucky, bills of review are allowed for statement of facts. errors on the face of the record, and not in "It is admitted that the bank pulled down a cases where the error is in the decree only. In plain brick dwelling-house, as appears in said Kentucky, a bill of review lies for any error in will, No. 2, on said lot where Fifth Cross street, the proceedings in the case. There the decree if extended, would run and extend said street does not, as in England, set forth the whole to Walnut street, and they sold, as stated in matter in the cause; and to deny a bill of re- the answer, to different persons, and the im. view on the principles which apply to the cases provements stated of the Roman Catholic in the Court of Chancery in England, would be church and others, extension of the street and to deny it altogether.
other improvements have been made and put If this is the law, and it will not be denied, upon the ground, and that the persons named the record exhibits such errors as may be are living on the lot aforesaid.” brought before the court by a bill of review. All these persons have expended large sums Breckenridge was a necessary party. He had in the improvement of the property, and the a deep interest in the proceedings against the question before the court is, whether all that land.
was done in 1827 shall be undone, and the par. No exception will lie to the bill on the ground | ties be permitted to come in and redeem. This of the interference of the statute of limitations. is what is asked. It is not the course of a It was filed within five years after the sale, and court of equity, on a bill of review, to bring the termination of the minority of the children into review what has been decided. If such a of Whiting. The law of the United States bill were allowed, it would be in the nature of saves the rights of minors.
an answer, and bring again into controversy all Wbile it is admitted that no case has been that had been passed upon by the court. The cited in which a bill of review has been sus. res adjudicata is in equity as at law. The tained, principally like that now before the rule must be the same. court; yet it is claimed that in such a case a There are bills of review in the nature of writ of error would lie if the proceedings had original bills, as when a person has not (*11 been at law; and the bill of review in a chan. been made a party to the original proceed. cery case is analogous to a writ of error in a case ings, and may be affected by them. Mr. Breck. at law. The argument for the appellees is, enridge might in this case have come in, if 10"]that if in the course of the proceedings *to he had been injured. sell the property, exceptions were not taken to There are two other descriptions of bills of their regularity, they cannot now be taken no review in England. 1. A bill filed after the tice of by a bill of review. Yet writs of error original bill has been enrolled, or there has are maintained in suits on the ground of want been a final decree. 2. A bill filed when the of parties. The practice is to send back the decree has not been made, and before enroll. proceedings, and allow amendments to be made ment. which will bring the merits of the case for- The error must be apparent on the face of the ward. This is a similar case. 6 John J. Mar- decree, and the court cannot go into the evi. shall's Rep. 197.
dence in the original proceedings. Story's The heirs may come in and show they were Equity, 334; Lord Eldon in Perry v. Philips, not parties to the sale, and may examine 17 Ves. 178. No persons but parties or privies the manner in which it was conducted. This can have a bill of review. Gilbert, For. Rom. is essential to the proceedings in the case. 186; Slingsby v. Hale, 1 Chan. Cas. 122. And
It is said that the decree is final on the order none but those who have an interest in the of foreclosure of the mortgage; but this is er-proceedings can maintain such a bill; nor an.
less they suffer from the particular error as. curity for the due payment thereof, Johnson
The condition of the mortgage, among other Opportunities, during the proceedings on a things, stated, that it was agreed by the par. bill in chancery, to interpose and correct errors, ties, that after the satisfaction of the said de. are always afforded, as by demurrer or by plea; mands due by Whiting to the bank, and by when proper parties may be introduced 16 Gabriel J. Johnson to Whiting, the estate, or Ves. 325; Mitford, 180; Cowper, 185; 3 Paige, the residue thereof, or any surplus, if money, 222; 2 Paige, 281. The court will then decide by the sale thereof, should be paid or conveyed on the matters presented, and if necessary there to Enfield Johnson or her assigns. The mort. may be an amended bill, or a supplemental bill. gage also contained a stipulation for the sale But such a decision would not be an error in of the premises, to meet the payment of the the decree to entitle to a bill of review. This debt due to the bank. In April, 1823, the is much stronger where a party has been omit- debt due and thus secured to the bank remain. ted and does not complain; as in the case be ing unpaid, a bill for a foreclosure and sale was fore the court, in which Breckenridge is not a brought by the bank, in the Circuit Court of party.
the United States for the District of Kentucky; But in addition to all these matters, Whiting and to that bill, Gabriel J. Johnson, Enfield had not a title to the property, or any interest Johnson, and Whiting were made parties. But in it. It had never been his, and the proceed. Breckenridge was not made a party. At the ing to foreclose against him, devested every November Term of the Circuit Court, A. D. equitable claim he could set up. The decree of 1826, a decree of foreclosure of all the equity foreclosure was in the lifetime of Whiting, or right of redemption of the defendants in the barring him and his heirs, and the statute of mortgaged premises was passed; and a further limitations began to run from the time of the decree, that the premises should be sold by decree. An execution levied does not stop by commissioners. The sale took place accordingly; the death of the party. The sale did not re- the bank became the purchasers; and the sale quire, as a prerequisite to its proceeding and was confirmed by the Circuit Court at the May completion, that the heirs should be brought in. Term, 1827. In the intermediate time between
Finally. The bill of review is barred by the original decree of foreclosure and the sale, length of time. Elmendorf V. Taylor, 10 viz., on the 26th of February, 1827, Whiting Wheat. 150. More than five years have elapsed died in Massachusetts, leaving the plaintiffs in from the decree to the filing of the bill of re the present bill, Paulina Whiting, and Helen B. view. The statute, as has been said, began Whiting, and one L. R. Whiting, (since dead to run its course in the life of Whiting; and without issue) his children and heirs-at-law; it was not stopped by disabilities occurring on who were then infants under age; and the his death.
youngest, Helen, did not come of age until 1831.
The present bill is brought by Paulina Whit. Mr. Justice Story delivered the opinion of ing and Helen B. Whiting, by James Richardthe court:
son, administrator of Ruggles Whiting, and by This is the case of a bill, purporting to be a Gabriel J. Johnson and Enfield Johnson, against bill of review. The substantial facts, as they the Bank of the United States; and after statappear on the record, are as follows: Gabriel ing the proceedings in the original suit upon J. Johnson being the owner in remainder of a the mortgage, and that the sale was made at a 12*] five acre lot, *No. 9, in Louisville, Ken great *sacrifice of the property, it relies (*13 tucky, of which his mother, Enfield Johnson, on the following grounds of error in the prowas tenant for life, under the will of his fa- ceedings, decree, and sale in the original suit: ther, and being also the owner in fee, by ad- 1. That it was irregular and erroneous to enother title, of another piece of land adjoining tertain the bill and pronounce the decree for the five acre lot (a part of the slip No. 2), on foreclosure and sale, without Breckenridge bethe 12th day of November, A. D. 1878, conveyed ing made a party defendant. 2. That it was the same in mortgage to James D. Brecken- irregular and erroneous to sell the property ridge, to secure the latter for his indorsements mortgaged, without a revival of the suit against of three certain notes of Johnson to Ruggles the heirs of Whiting. 3. That it was unjust Whit each for four thousand dollars, and and oppressive to sell in the manner and at the for any other notes and contracts which Breck price when the sale took place. enridge should thereafter make, execute, ac- The answer of the bank denies all equity in cept, or indorse, for the benefit of Johnson. the plaintiffs, and insists that the decree and Afterwards, on the 9th day of August, A. D. sale were fair and just. It also denies that 1820, Johnson, and Breckenridge, as his surety, Whiting or Breckenridge had any title to the being indebted to the Bank of the United property, and insists that they joined in the States in the sum of nine thousand nine hun mortgage merely to complete the arrangements dred and thirty-one dollars and thirty-seven made between Johnson and themselves. It al. cents, arrangements were made between them so denies that the death of Whiting was known and Whiting, by which Whiting assumed the at the time of the sale. It states that the proppayment of the same debt, and gave his note erty was, after the purchase by the bank, im. therefor to the bank accordingly; and as se proved, and parts thereof sold to bona fide
purchasen for valuable considerations; and by Having made these explanations, which reason of the improvements and the extension seemed proper with reference to the arguments of the city, parts of the grounds 80 sold are now pressed at the bar, we many now return to the among the most beautiful and densely built consideration of the direct points presented for parts of the city. The answer also states that the consideration of the court. The third and Whiting died insolvent and deeply indebted to last error relied on in the bill, has been aban. the bank, by certain other judgments and doned at the argument, and therefore it need notes.
not be examined. The other two remain to be Such are the material facts and statements in disposed of. And first, as to the supposed the case, and upon them, so far at least as the error in not making Breckenridge a party to present bill of review is concerned, there is no the original bill. Assuming that he was controversy between the parties. The prayer proper party to that bill, still it is to be con. of the bill is, that the proceedings may be re- sidered, that it was an objection which ought vived (as the word stands on the record, proba. properly to have been taken by the present bly by mistake, for reviewed), and that the parties on the original hearing, or upon the ap. decrees and sale may be set aside; that the peal (if any) before the appellate court. And plaintiffs may be permitted to redeem; and for upon a bill of review it cannot properly be reother relief.
lied on as matter of error, unless it can be Some suggestions have been made as to the shown that the nonjoinder has operated as an nature and character of the present bill-injury or mischief to the rights of the present whether it is to be treated as a bill of review, plaintiffs. No such injury or mischief has or what other is its appropriate denomination. been shown, or is pretended. Breckenridge is As the original decree, which it seeks to re- not bound by the original decree, because he view, was properly, according to our course of was no party thereto; and, therefore, his interpractice, to be deemed recorded and enrolled ests cannot be prejudiced thereby. But if they as of the term in which the final decree was were, he, and he alone, has a right to complain, passed, it is certainly a bill of review in con- and to seek redress from the court; and not tradistinction to a bill in the nature of a bill the plaintiffs, who are not his representatives, of review; which latter bill lies only when or entrusted with the vindication of his rights. there has been no enrollment of the decree. Breckenridge has made no complaint and Being a bill brought by the original parties sought no redress. We think, therefore, that and their privies in representation, it is also this error, if any there be, not being to the properly a bill of review in contradistinction to prejudice of the plaintiffs, cannot furnish any an original bill in the nature of a bill of re- ground for them to maintain the present bill; view; which latter bill brings forward the in- for no party to a decree can, by the general terests affected by the decree other than those principles of equity, claim a reversal of a dewhich are founded in privity of representation. cree upon a biîl of review unless he has been
The present bill seeks to revive the suit by aggrieved by it, whatever may have been his introducing the heirs of Whiting before the rights to insist on the error at the original court; and so far it has the character of a bill hearing, or on an appeal. of revivor. It seeks also to state a new fact, In the next place, as to the sale of the mortviz., the death of Whiting, before the sale; and gaged premises after the death of Whiting, 80 far it is supplementary. It is, therefore, a without a revival of the suit against his heirs, compound bill of review, of supplement, and it is not even pretended in the bill of review of revivor; and it is entirely maintainable as that there was any fraud in the sale; nor upon such, if it presents facts which go to the merits the argument has any irregularity even been of the original decree of foreclosure and sale. insisted on. What, then, is the gravamen!
It has also been suggested at the bar, that no That the land was sold honestly and fairly, but 14*) bill of review lies 'for errors of law, ex for a less price than its real value. *Now, (*15 cept where such errors are apparent on the face such an objection, even in the mouth of Whitof the decree of the court. That is true in the ing himself, if he had been living, would have sense in which the language is used in the constituted no valid objection to the sale, or English practice. In England, the decree the confirmation thereof; but at most would always recites the substance of the bill and an. have furnished only a motive to induce the swer and pleadings, and also the facts on which court, in its discretion, to have ordered a resale, the court founds its decree. But in America or to have opened the biddings. It would be the decree does not ordinarily recite either the no matter of error whatever. If this be a corbill, or answer, or pleadings; and generally rect view of the subject, it is plain that the not the facts on which the decree is founded. heirs of Whiting cannot be entitled to be put But with us the bill, answer, and other plead. in a better predicament than Whiting bimself; ings, together with the decree, constitute what and no decree in equity ought to be reversed is properly considered as the record. And for matter of mere favor, and not of right. therefore, in truth, the rule in each country is But is the objection itself, in principle, well precisely, the same, in legal effect; although founded? That depends upon this: whether expressed in different language-viz., that the the decree of foreclosure and sale is to be con. bill of review must be founded some sidered as the final decree in the sense of a error apparent upon the bill, answer, and other court of equity, and the proceedings on that pleadings, and decree; and that you are not at decree a mere mode of enforcing the rights of liberty to go into the evidence at large in order the creditor, and for the benefit of the debtor; to establish an objection to the decree, founded or whether the decree is to be deemed final only on the supposed mistake of the court in its own after the return and confirmation of the sale by deductions from tho evidence.
a decretal order of the court. We are of opin.
ion that the former is the true view of the *JOHN P. VAN NESS and William Jones (*17 matter. The original decree of foreclosure and
Plaintiffs in Error, sale was final upon the merits of the controversy. The defendants had a right to appeal THE BANK OF THE UNITED STATES, from that decree, as final upon those merits, as
Defendant in error. soon as it was pronounced, in order to prevent an irreparable mischief to themselves. For, if Proceedings of Maryland courts concerning the sale had been completed under the decree, the title of the purchaser under the decree,
property in the District of Columbia prior to yould not have been overthrown, or invali.
congressional legislation for that district
guardian's deed-acknowledgment of deeds, dated even by a reversal of the decree; and conBequently the title of the defendants to the
irregularity in. lands would have been extinguished; and their redress upon the reversal would have been of a Maryland, and the laws of that state prior to the
The proceedings of the courts of the State of different sort from that of a restitution of the passing of laws by Congress providing for the gov. land sold. In Ray v. Law, 3 Cranch R. 179, ernment of the District of Columbla, were in full it was held by this court, that a decree of sale ceded by the State of Maryland, until Congress bad of mortgaged premises was a final decree in legislated for the government of the District of the sense of the act of Congress, upon which Columbla; and the decree of the Court of Chancery an appeal would lie to the Supreme Court. Columbla, in a cause entertained in that court, This decision must have been made upon the operated in the district until Congress took upon general ground that a decree, final upon the itself the government of the district. merits of the controversy between the parties, both intended that the suits pending in the courts
The State of Maryland and the United States, is a decree upon which a bill of review would of Maryland should be proceeded in until the rights lie, without and independent of any ulterior of the partles should be definitively decided, and proceedings. Indeed, the ulterior, proceedings be as valid and conclusive as if the sovereignty are but a mode of executing the original decree, had not been transferred. like the award of an execution at law. If this Congress, by the 13th section of the Act of Febbe the true view of the present decree, and the mark, 27. 1801. placed judgments and decrees proceedings thereon, then it is plain that this the State of which the District of Columbia bad bill of review is not maintainable for two formed a part, on the same footing with judgreasons, each of which is equally conclusive.ments and decrees rendered before. The first is, that no error is shown in the state of Maryland, in a cause Instituted after Con.
If a guardian appointed by the court of the original decree, for the only pretended error is gress had legislated
for the District of Columbia, in the sale under the decree. The second is, had been ordered, by a decree of the court, to make
a deed of lands within the district, and had died, or that this bill of review was not brought within had refused to make the conveyance as ordered. five years after the original decree was rendered the court of the district would, on application, have in the lifetime of Whiting; and the statute of been bound to appoint another person to execute
the deed; and would not have been authorized to limitations, having once begun to run, cannot open again and re-examine the questions which be stopped by any subsequent intervening dis- had been decided in the Maryland court. abilities.
A deed was executed, and acknowledged “W. M.
Duncanson, guardian for Marcia Burpes;" and If, then, the original decree was unobjec. acknowledged by the guardian "to be his act and tionable and conclusive; if there has been no deed as guardian aforesaid, and thereby the act
This is a good fraud in the subsequent sale, pursuant to that and deed of the said Marcia."
execution and acknowledgment. decree; and if there has been, in a legal sense, The acts of the Assembly of Maryland, prescribno prejudice to any rights of the plaintiffs in Ing the
mode in which deeds should be acknowl16*] the original decree, or the sale, then, *al. edged for the conveyance of real property, were
adopted by Congress in the act assuming juristhough there was no revivor before the sale, diction in the District of Columbia, together with there is no error upon which a bill of review the other laws of Maryland then in force. The acts will lie to entitle the parties to a reversal. We of the Assembly of Maryland relating to the acdo not say whether the Circuit Court might or of the peace, or other officers who have authority might not in its discretion have required a re- to take acknowledgments, shall describe in their vival of the suit before the sale was confirmed, is established by proof that the acknowledgment
certificates their official character. Whenever it if the fact of the death of Whiting had been was made before persons authorized to take it, it distinctly brought to its knowledge. But we must be presumed to have been taken by them in do mean to say that the nonrevival was not their official capacity.
The soundest reasons of justice and policy seem matter of error, for which the proceeding on to demand that every reasonable intendment should the sale under the original decree (for that is be made to support the titles of bona fide purchasall which the present bill seeks to redress) can
ers of real property.
In the declaration in ejectment, various demises or ought to be reversed.
were laid, and the verdict of this jury, and the The decree of the Circuit Court, dismissing judgment of the Circuit Court, were entered on the bill, is therefore affirmed with costs.
one of the demises only ; and it was contended that the court ought not to have entered a judgment on the issue found for the plaintiff, but should have
awarded a venire de novo ; and that this irregularity This cause came on to be heard on the tran- might be taken advantage of upon a writ of error. script of the record from the Circuit Court of Circuit Court on a motion in arrest of judgment,
Held, that if this objection had been made in the the United States for the District of Kentucky, the plaintiff would have been permitted to strike and was argued by counsel; on consideration out all the demises for the declaration but that on whereof, it is now here ordered and decreed by strike out these demises was only, therefore, an
which the verdict was given. The omission to this court that the decree of the said Circuit omission of form ; and the Act of Congress of 1789 Court in this cause be, and the same is hereby ch. 20, sec. 32, expressly provides that no judgment affirmed with costs.
shall be reversed for any defect or want of form; but that the courts of the United States shall pro.
ceed and give judgment according as the right of State. The plaintiff in the Circuit Court of. the cause and matter in law shall appear to them: fered also in evidence, together with this record, want of form in the judgment or course of 'pro- the deeds of mortgage executed by the said Pol ceeding, except that specially demurred to.
lock, pursuant to the aforesaid decree; and also & deed of conveyance for the said lots from
Marcia Burnes to Pollock, executed by William N error to the Circuit Court of the United Mayne Duncanson as her guardian. This deed
States for the District of Columbia, sitting is dated *January 12th, 1802, after Con: (*19 for the County of Washington.
gress had assumed the government of this disThis case came before the court from the trict. The defendant in the Circuit Court ob18'] District of Columbia, "and was argued jected to the admissibility and competency of by Mr. Coxe for the plaintiffs in error, and by all the evidence above stated; but the objection Mr. Key for the defendants.
was overruled by the court, and this forms the The case is fully stated in the following first exception. opinion of the court, delivered by Mr. Chief
In the further progress of the trial in the Justice Taney:
Circuit Court, various other deeds were offered This case comes before the court upon a in evidence on the part of the plaintiff, in order writ of error, directed to the judges of the to show a title derived from Isaac Pollock; and Circuit Court for the District of Columbia, among the deeds thus offered, was one from sitting for the County of Washington.
Walter Smith to Benjamin Stoddard, dated It is an action of ejectment brought by the March 5, 1807, acknowledged before Richard Bank of the United States, to recover sundry Parrott and Thomas Corcoran. This acknowl. lots of ground in the city of Washington. The edgment was dated “District of Columbia, declaration contains four demises, purporting Washington County, to wit:” but it was not to have been made for the same premises by stated in the acknowledgment, nor did it appear different lessors. The jury found for the by that instrument, that Parrott and Corcoran plaintiff upon one of the demises, but said were justices of the peace for Washington nothing of the other three; and the judgment of County. In point of fact, however, they were the court is entered, in like manner, upon the such justices, and it is so admitted in the particular demise on which the jury found exception. The defendant objected to the for the plaintiff; and without taking any notice admissibility of this deed; and this forms of the others.
substance of the second exception: At the trial in the Circuit Court, it was ad- for although other papers are mentioned as mitted that David Burnes was seized in fee of objected to at the time, the only point raised the premises in controversy in his lifetime, here is upon the acknowledgment of this deed. and that he died seized thereof, intestate, leav. Upon the first exception the plaintiffs in ing Marcia Burnes his only child and heiress error insist that the deed of conveyance from at-law. The plaintiff in the court below, then Marcia Burnes to Pollock of the 12th of Jan. offered in evidence the exemplification of auary, 1802, executed by her guardian as above record from the Court of Chancery of Mary: mentioned, pursuant to the decree of the Mary. land, duly certified, by which it appeared that land Court of Chancery, conveyed no title; 8 certain Isaac Pollock, on the 17th of May, that the sovereignty of Maryland over Wash. 1800, filed his bill in the said court, against ington County, in this district, having termiMarcia Burnes, then an infant, in order to nated on the 27th of February, 1801, when Con. obtain the conveyance of a large nuinber of gress assumed the jurisdiction, the decree of lots, in the city of Washington, among which the State court could not be executed, without are the lots now in controversy; and claiming filing an exemplification of the record accordthe same under a contract made with David ing to the 13th section of the act of Congress Burnes in his lifetime, which had not been which provided for the government of the tercarried into execution by proper conveyances ritory; and obtaining an order for the execu. at the time of his death. It further appeared, tion of the decree from the Chancery Court of by the said record from the court of Chancery, this district. that after various proceedings in the case, the This objection cannot be sustained. The Act Chancellor, on the lot of November, 1800, of Assembly of Maryland, of 1791, ch. 45, decreed, that upon the complainant's securing which ceded the territory to the United States, the purchase money to the satisfaction of the provided, “That the jurisdiction of the laws Chancellor, the infant defendant, Marcia of the State over the persons and property of Burnes, should, by William Mayne Duncanson, individuals residing within the limits of the who had been appointed her guardian ad litem, cession, should not cease or determine until convey the said lots to Pollock in fee. After Congress should by law provide for the gove wards, further proceedings having been had, the ernment thereof under their jurisdiction.” The court, on the 26th of October, 1801, passed an. United States accepted the cession made by this other decree, approving the security which Pol. law of the State; and the conditions above lock offered (which was security on other real mentioned, therefore, formed a part of the property), and directing that upon the com: contract between the parties; and consequently plainant's executing mortgages for the said real the laws of Maryland, and the jurisdiction of property to the said Marcia, to secure the pay. its courts, continued in full force, until Con. ment of the purchase money, she should make gress took upon itself the government of the the conveyance by her guardian, as directed district; and as it was uncertain at what time by the former decree. It is unnecessary to the United States would assume the jurisdic. state more in detail the proceedings in the tion, it must have been foreseen, that whenever Maryland court, because it is admitted that that event should happen many suits would be they were fully warranted by the laws of that I found pending and undetermined in the State