USA > Pennsylvania > Bradford County > Athens > A history of old Tioga Point and early Athens, Pennsylvania > Part 81
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But the committee who examined and reported so positively on this case, were not left to judge from the journals, statute books, documents and decisions that surrounded them :- they were not left to rely alone on the irresistible con- clusions of common knowledge and common sense; for in addition to all these, they held in their hands and read the papers executed by the parties on the 8th October 1807, and the depositions of witnesses in relation to that transaction, which are as follows :-
Colonel Elisha Satterlee, deposes "that in the summer of 1807 Mrs. Eliza- "beth Mathewson informed him that she was sued by Charles Carroll of Carrollton "in ejectment, for lands lying on Tioga Point ; and offered him, this deponent, that "if he. Col. Franklin, and others, leading men interested in the Connecticut claim, "would defend the suit and thus get the general question tried between the Con- "necticut and Pennsylvania claims, she, the said defendant, would remain quiet "and let the cause go on; otherwise she must settle with Mr. Carroll as well as "she could."
It is proper to be stated in this place that the expression of George Welles and Henry Welles in the neighborhood had been that Mr. Carroll would in all probability leave Mrs. Mathewson the lot on which she lived.
The next deposition then, is that of Thomas Overton; who relates "that in "the fall of 1807, being desirous of moving to Tioga Point, he called on Elizabeth "Mathewson and Dr. Elias Satterlee, executors of Elisha Mathewson, deceased, "in order to treat for the purchase of the house occupied by Mrs. Mathewson :- "that he offered to give them seven hundred dollars if they would get the Penn- "sylvania title. That David Paine, Esq., being the friend and adviser of Mrs. "Mathewson, was the person agreed on to draw the writing. That it was stated "by Mrs. Mathewson and Dr. Satterlee that Henry Welles would procure for de- "ponent the Pennsylvania title to be delivered to him, the deponent, as a consid- "eration for which Mrs. Mathewson was to deed to Henry Welles certain lands "held by her below the village. That the deponent met Mrs. Mathewson, Dr. Sat- "terlee, George Welles, and David Paine, to have the writings drawn : which was "done by Mr. Paine. Deponent contracted for purchase of house and lot at seven "hundred dollars, and became bound to pay in two installments, payable in a short "time. That the deed to Henry Welles was executed by Mrs. Mathewson, and a "bond was drawn from George Welles and Henry Welles in eight hundred dollars "for the delivery of the Pennsylvania title of the house and lot to this deponent; "which was signed by George Welles; but as Henry Welles was not then present, "deponent declined accepting it until executed by him. That it was then agreed "that all the writings should be placed in the hands of Mr. Paine, until such bond
5 See Archives, Second Series, Vol. XVIII.
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APPENDIX A
"was signed by Henry Welles; and they were so placed in his hands. That the "deponent was never spoken to by George Welles or Henry Welles, or any person "in their behalf, to assist them in making any arrangement or settlement with Mrs. "Mathewson ; nor does this deponent know, or believe, that they or either of them "were answerable for the performance by him of his contract ; as this deponent was "perfectly able and willing to comply with it."
David Paine deposes, "That he was in habits of intimacy with Major Elisha "Mathewson in his lifetime, and since his death with his widow and family. That "in the summer of 1807, Mrs. Mathewson and Elias Satterlee who were executors "of Major Mathewson, frequently consulted this deponent about a suit commenced "against them by Mr. Carroll of Carrollton, for the recovery of the house and lot "at Tioga Point upon which Mrs. Mathewson resided; and also of other lands a "little below the village, then also in the occupation of the said Mrs. Mathewson. "That this deponent felt desirous of assisting Mrs. Mathewson and her family, and "did every thing in his power as a friend and adviser. That sometime, he thinks, "in the month of October 1807, Elias Satterlee called upon this deponent, and told "him that he thought that some arrangement might be made with the agents of "Mr. Carroll, which would benefit Mrs. Mathewson ; and wished him to come down "and see her. That he then went down and conversed with her and Dr. Elias Sat- "terlee, and found that they had received from Thomas Overton Esq. an offer of "seven hundred dollars or thereabouts for her house and lot, if he could get the "Pennsylvania title to the same. That this deponent, being confident that Mrs. "Mathewson could not resist or set up any legal defence to the ejectment brought "by Mr. Carroll against her, advised her to endeavor to get such Pennsylvania title "from Mr. Carroll or his agent, and compromise her then difficulties with them; "this deponent then believing that such sum of money was a great deal better than "the whole of her claim on the Point. That the same day or a day or two after- "wards, this deponent, by the request of Mrs. Mathewson and Elias Satterlee, at- "tended a meeting between George Welles, Thomas Overton, Mrs. Mathewson "and Elias Satterlee; and an agreement was made by them as follows, as near as "this deponent can recollect : that the said Thomas Overton should pay to Mrs. "Mathewson seven hundred dollars in two installments for purchase of the house "and lot on Tioga Point, and that George Welles and Henry Welles should exe- "cute to the said Thomas Overton a bond in the sum of eight hundred dollars, con- "ditioned for delivery to him of the Pennsylvania title; and Mrs. Mathewson, as "consideration of such bond, was to give a deed to Henry Welles of all her lands "below the village of Tioga Point. That this deponent was then employed by all "the parties present, Henry Welles being not then there, to draw the necessary "writings; and he drew the contract of sale to Overton, and also the deed from "Mrs. Mathewson to Henry Welles, which were then executed in the presence, "as this deponent believes, of Joseph Smith and this deponent. That he also drew "the bond from George Welles and Henry Welles to Overton for the Pennsyl- "vania title, which was executed by George Welles; and as Henry Welles was not "then present, it was agreed that all the said writings should be left with this de- "ponent until Henry Welles signed the bond; as the said Overton was unwilling "that the contract should be delivered up to Mrs. Mathewson until Henry Welles "signed the bond; he expressing himself dissatisfied, or unwilling to take it until "signed by him. That all the writings were then lodged in the hands of this de- "ponent until such signature was procured, which was done shortly afterwards ; "and this deponent, on Henry Welles' signing the bond, handed over to him Mrs. "Mathewson's deed, and soon afterwards gave up the contract to Mrs. Mathewson, "and the bond to Overton.
"The next year this deponent was called upon as a witness by Mrs. Mathew- "son in a suit brought against her by Henry Welles, which was referred to Joseph "Kingsbery, John Shepard and Samuel Gore, and was examined; but as this de- "ponent believes he was barely called upon to prove the declarations of Mrs. "Mathewson, as to what lands she conveyed, or intended to convey to Henry "Welles, made at the execution of the deed.
"That this deponent has since been examined in one or more suits between "Elizabeth Mathewson and Elisha Satterlee; but neither in those suits nor in the "suit brought by Welles, was he ever examined as to delivering up the deed to
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HENRY WELLES' DEFENCE
"Henry Welles without any authority ; nor has the said Elizabeth ever alleged, "(although this deponent has had repeated conversations with her) to him, that "he did give up the deed improperly. And this deponent further saith, that it "was never agreed upon, either directly or indirectly, in the presence of this de- "ponent, or at the time of his retaining the writings aforesaid; that they were to "be kept by him any longer than until the said Henry Welles executed the said "bond; nor were the said Welles', either of them, at all answerable or accountable "for said Overton; he being at that time accepted by them and considered by all "parties willing and able to fulfill the contract. That this deponent was present "a little time before the first installment on the contract became due, and heard the "said Overton offer to pay it to Mrs. Mathewson; who by advice of the deponent, "declined accepting it, as she might be induced to lend it, and wished to get both "installments together, so that she might lay them out in the purchase of other "lands for the benefit of herself and family, either in New York State, or some "other place which she should determine upon. That this deponent considers the "whole transaction as fair and candid on the part of the said Welles and Overton, "and does not believe that the said Elizabeth had any intention of defending the "suit in the Circuit Court at the time of entering into the contract and signing the "deed ; but that the bond given by George and Henry Welles was a full considera- "tion for the delivering up to Henry Welles of the lands below the Point."
Next comes Mrs. Mathewson's deed to Henry Welles, dated October 8, 1807, conveying all the right to said parcels of land on Tioga Point that Elisha Mathew- son died seized of, as also the right of possession which the aforesaid Elizabeth now holds by actual occupation, or otherwise, reserving the house and lot; with covenant for peaceable possession of the premises against the heirs of Elisha Mathewson, &c. Signed by Elizabeth Mathewson and Elias Satterlee, and wit- nessed by Joseph Smith, David Paine and Enoch Paine, the latter since deceased. Proved by David Paine, April 5, 1808, and recorded April 6, 1808, in Book G of the Susquehanna Company, Page 163; John Franklin, Clerk.
Next the bond of George Welles and Henry Welles to Thomas Overton, dated October 8, 1807; conditioned in eight hundred dollars, to procure a deed from the legal proprietor for the house and lot, and deliver it to Thomas Overton at Tioga Point, within six months.
Next is Henry Welles' bond, dated October 8, 1807, to Elizabeth Mathewson, to indemnify her against all cost that has, or may arise in consequence of the eject- ment : Together with the receipt of "Betsey Mathewson" and "Elias Satterlee," dated October 21, 1808, for said bond as delivered to them; expressly reciting it as to save "said Elizabeth harmless from all cost that has or may thereafter arise in consequence of the writ of ejectment ;" signed with their names, and witnessed by their shrewd counsellor, Job Irish.
And lastly, Thomas Overton's contract with Mrs. Mathewson, dated October 8, 1807, for purchase of the house and lot, at seven hundred dollars ; half payable at six, the remainder at twelve months. All these papers are in the hand writing of David Paine, Esq.
On the part of Mrs. Mathewson there is nothing in the nature of evidence to contradict or divert from its bearing, any particular of this body of testimony. except the deposition of Joseph Smith, who states that he understood that the deed of Mathewson to Welles, was to be left in the hands of David Paine, Esq., and not to be delivered to said Welles until Thomas Overton fulfilled his agree- ment with Mrs. Mathewson. This affidavit of Mr. Smith was procured from him by Mathewson before he had heard anything from Paine or Overton whereby to correct his memory ; and it is evident, that recollecting the fact of its deposit with Mr. Paine, he has substituted Mathewson's suggestions instead of the true reason of that deposit. Mr. Smith was called in simply to be a second witness to the execution of certain papers ; but on the other hand Mr. Paine and Mr. Overton were the persons who made the bargain, and drew the papers, and of course far less likely to be in error.
Mr. Overton swears positively that the papers were left with Paine until Henry Welles (who was not in Athens at the time of this transaction) should sign the bond for the deed; and that this was done in consequence of his (Over-
600
APPENDIX A
ton's) declining to receive the bond of Henry Welles before it was signed by Henry Welles. This is clearly reasonable.
Mr. Paine swears positively that all the writings were left with him until Henry Welles should return and sign the bond to Overton : and that this was done because Overton was unwilling that his contract should be delivered to Mrs. Mathewson before the bond to him was executed. And further, Mr. Paine swears that he was a witness in the trespass case of Welles vs. Mathewson, before ref- erees; and also, on one or more suits between Elizabeth Mathewson and Elisha Satterlee, wherein Mrs. Mathewson's deed to Henry Welles was a subject of en- quiry ; and that in neither of those cases was he questioned as to his authority for delivering up that deed :- and that in his repeated conversations with Mrs. Mathewson she has never alleged to him that he had delivered that deed im- properly.
Job Irish, also, whose testimony is sufficiently corroborated by the other witnesses, swears in his depositions before the committee, that he was employed by Mrs. Mathewson as her counsel to defend the trespass suit of Henry Welles before referees; and also in several suits and arbitrations between Elizabeth Mathewson and Elisha Satterlee, in which the deed to Henry Welles was a sub- ject ; and never heard her, or any of her children, allege that the said deed had been obtained by fraud, or that it had been delivered to Henry Welles without authority.
Memory is liable to error ; but the documents written and executed by the parties at the time are unchangeable, and can neither mistake nor forget. The Mathewsons have in their possession the contract of Thomas Overton, wherein he is bound, in purchase of the house and lot, to pay seven hundred dollars in two installments extending to twelve months. On the other hand the bond drawn under the eye of Elizabeth Mathewson and Elias Satterlee, by their friend and adviser David Paine, and in pursuance of their own arrangements, absolutely binds Henry Welles to give Thomas Overton a deed for the house and lot "at any time within six months"!
Again :- Let these stories be tested by reason; surely this is an important witness. Did Elizabeth Mathewson rest her only hope of saving anything from Mr. Carroll's ejectment, on a conditional arrangement? Did she stipulate that if Overton should fail to pay her, all this arrangement should fail and she have nothing! But still there are two witnesses who send forward their depositions in support of the allegation of conditions, and fraudulent delivery of the deed ; and these are Colonel John Franklin, and Colonel Joseph Kingsbery.
COLONEL JOHN FRANKLIN, now very far advanced in years, who has been both civil and military leader of the Wyoming controversy against Pennsylvania from the first stages to the last, and who evidently still feels "the ruling passion," deposes that Mrs. Mathewson's deed to Henry Welles "was delivered into the "hands of a third person, as this deponent understood and believes, not to be de- "livered up to the purchaser, or be of any force, until she should receive payment "for the house and lot." Colonel Franklin goes through with his whole narrative, saying occasionally, "as this deponent understood and believes ;" but he does not say that he was present on the 8th of October, when the several writings were made and executed ; neither was he present. He does not say that he heard any of these things averred in the presence of Henry Welles, or in any manner ad- mitted by Henry Welles :- neither does he say from whom or at what time he understood and believed these things; whether in 1807, or recently :- neither does he say that, of himself, he knows anything at all about the matter.
And it is this hearsay evidence that Colonel John Franklin sends forward upon oath, as a testimonial whereupon the General Assembly of Pennsylvania are to LEGISLATE away the rights of property ! No paragraph of this deposition, how- ever taken, would be admissible in any Court of Justice :- and as moral evidence, how it sinks when opposed to the testimony of the actors themselves, and the documents they framed and executed !
Next comes the deposition of COLONEL JOSEPH KINGSBERY, who testifies, not to any original knowledge of his own about the deed, but to what he says was proved respecting it before John Shepard, Samuel Gore, and himself, when sitting as referees in the trespass case. This, coming from one who tried the case, seems
601
HENRY WELLES' DEFENCE
to be strongly introduced; and, as is said in the report, "it will be proper to re- "mark that Joseph Kingsbery, one of the referees, swears positively." His depo- sition is as follows :- "But it further appeared in the course of the investigation "that the deed from the defendant had not been lawfully obtained ; it having been "put into a third person's hands to be held, and not given up to the plaintiff, until "certain conditions were complied with; which conditions were the foundation of "the said deed. And it further appearing to said referees, that the conditions "aforesaid had never been complied with, they decided unanimously that they had "no jurisdiction of the cause."
"Appeared in the course of the investigation," whereon the referees "de- cided." Of course this must have appeared by testimony. "Appeared" before the referees ! by whom did it appear? Joseph Smith, the ONLY man who has ever so attested swears that he was not before them!
David Paine was a witness present on that trial. He is a gentleman known to be of the very first respectability and honor that ever resided in that country. If any such flagrant impeachment of his conduct had been advanced there to his face, it would have caused no small sensation in that community, and no hearer would have forgotten it.
By whom did Colonel Joseph Kingsbery. referee, hear the all important matter that he "swears positively" about, which he swears "decided" the case, proved before the referees? Joseph Smith was not there, neither by himself nor by deposition.
Colonel John Franklin was present, and opened the defence on behalf of Mrs. Mathewson on that trial, and swears that he understood and believed THAT as hearsay, but does not pretend that it was so proved then.
David Paine swears that he was a witness there, but never was examined at all as to delivery of the deed; that no such thing was broached before the referees, and that no such allegation has ever been mentioned to him by Mrs. Mathewson in repeated conversations !
Samuel Gore, Esq., also a referee, swears that he "does not recollect that "the plaintiff was accused of any fraud or collusion in obtaining the deed ;" which deed was there presented as in bar to defendant's oath that the title of land would come in question; but says "it is strongly impressed on my memory "that the Intrusion Act was read," which made dealing in Connecticut titles penal, and all its conveyances void : 3 Smith's Laws 525.6
And lastly. Colonel Job Irish, an unlicensed practitioner of great ability, acted there as managing advocate for Mrs. Mathewson, and by deposition "swears "positively" that he presented defendant's affidavit that the title to land would come in question. As a bar to that, Henry Welles offered the deed of Mrs. Mathewson to him for the premises in trespass; a deed recorded by Colonel Franklin as Clerk of the Susquehanna Company. That no pretence was made as to unfair delivery of that deed, and that he never heard of any such thing from Mrs. Mathewson or any other person then, or at any other time thereafter; but that he shut that deed out of evidence by reading the Territorial Law then in force, making all sales and conveyances of Connecticut title void and penal.
Mr. Gore names it the Intrusion Law; and that was what "decided the "cause." and decided it legally.
Thus it was in clear proof before the committee, that the deed to Henry Welles was absolute and immediate ;- that the bond to Overton was its consid- eration had and received ;- that this arrangement was a fair and amicable trans- action. done for the sole benefit of Mrs. Mathewson, and completed by surrendry of possession to Henry Welles, as will appear hereafter. It was also in proof, as will be shewn, that as the expressed consideration of the deed to Henry Welles, his bond to Overton, was afterwards virtually released by the latter, that still Henry Welles sustained the consideration equitably, by leaving to Mrs. Mathew- son the house and lot, when the habere facias was executed by the marshal; in consequence of which, she still retains it. So that the deed holds good as a trans- fer of possession so far as Mrs. Mathewson for herself and Elizabeth Mathewson and Elias Satterlee as executors, could convey it ;- and that, as will be hereafter shewn, goes to the full extent.
" This citation refers to the so-called "Territorial Act" of April 6, 1802, which imposes these penalties .- Ed.
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APPENDIX A
ALLEGED DISCONTINUANCE OF THE EJECTMENT
The report makes another assertion respecting the transaction of October 8, to wit, "In consequence of this arrangement it was agreed that the action of eject- "ment should be discontinued; and Welles gave Mrs. Mathewson a bond of in- "demnity against the cost of that suit." Again, in these words :- "Welles had "recourse to the action of ejectment of Charles Carroll vs. Mathewson, which he "had agreed to discontinue and pay the cost, in pursuance of the arrangement of "October 8, and which Mrs. Mathewson was led to believe was at an end, relying "on the agreement of Welles."
No member of this House who had not examined for himself could, on hear- ing this report read, have for a moment doubted, that a point so important, and so seriously averred, was fully made out in the testimony. In what language then, can it be said within these walls, that serious, positive, important and repeated as this averment is, it is a sheer falschood, and that alone !
No document, no deposition, no circumstance, no legal or moral evidence sustains the reporter in this peremptory assertion; but even the Bond of In- demnity itself, which he dares to quote, flatly disproves it! John Franklin says "that during the pendency of the suit, proposals were made by the agent of Car- "roll, as this deponent understood and believes, to compromise with Mrs. Mathew- "son." Again, that "he understood and believes, that Mrs. Mathewson, in con- "sequence of the proposed compromise, made no defence to the suit." Then Colonel Franklin "believed" that defence was open.
Joseph Kingsbery also deposes that the sales to Overton and Welles was the reason why she made no defence; thereby admitting that defence was open.
David Paine, as heretofore recited, describes the arrangement of October 8, as Mrs. Mathewson's sale to Overton of the house and lot, and to Henry Welles of all her other possessions under the ejectment; whereby she divested herself of all interest in the defence, and being indemnified against all cost that has or may arise, had nothing left in it to defend.
Thomas Overton's deposition before the committee says nothing about the pretended discontinuance ; but concurs with Mr. Paine as to the entire divesture of Mrs. Mathewson under the ejectment, by sale of her whole interest. But by his affidavit taken December 6, 1825, he states "that he perfectly well recollects "that when the deed was executed, George Welles expressly said that the arrange- "ment then made should not effect the suit then pending in the Circuit Court, "except so far as to Mrs. Mathewson's liability to cost."
This later deposition of Mr. Overton's of course was not before the com- mittee ; but we shall go on to show that every shadow of evidence that was before them, tended to disprove the allegation of an agreement to discontinue.
COPY OF BOND OF INDEMNITY.
Whereas Elizabeth Mathewson, against whom a suit of ejectment was brought by Charles Carroll of Carrollton, and which is now pending in the Dis- trict Court of the United States, for the lands the said Elizabeth was in possession of on Tioga Point, hath this day given me the subscriber a deed of possession of all her right to the lands in dispute on Tioga Point aforesaid, excepting the house and lot the said Elizabeth now occupies and possesses. I therefore hereby hold myself obligated and bound to indemnify and save harmless the said Elizabeth from all costs that have or may arise in consequence of the aforesaid writ of eject- ment brought against her by said Charles Carroll. In witness whereof I have hereunto set my hand and seal this eighth day of October, 1807.
In presence of
HENRY WELLES. [Seal]
DAVID PAINE.
COPY OF RECEIPT FOR SAME GIVEN WHEN DELIVERED TO MATHEWSON.
Whereas an article of agreement between Betsey Mathewson and Elias Satterlee of the one part, and Thomas Overton of the other part, (purporting that the said Thomas Overton was to pay the party of the first part, seven hundred dollars at the times therein stipulated, in consequence of which the said Elizabeth,
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