USA > Pennsylvania > Bradford County > Athens > A history of old Tioga Point and early Athens, Pennsylvania > Part 82
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603
HENRY WELLES' DEFENCE
or Betsey was to deliver to the said Overton peaceable possession of the house and lot she then and now occupies on Tioga Point,) was placed in the hands of David Paine for the benefit or use of the parties when necessary, And whereas the said Thomas Overton hath failed in complying with the conditions of said article, the said David Paine hath delivered to us the subscribers the said article of agreement that we may have the benefit thereof, agreeably to the express stipu- lation of the parties .- Their agreement is dated the 8th day of October, 1807 .- We have also received of said David Paine, a writing from Henry Welles to Elizabeth Mathewson, wherein the said Henry binds himself to save the said Elizabeth harmless from all costs that has or may thereafter arise, in con- sequence of a writ of ejectment brought against her by Charles Carroll of Car- rollton.
Witness our hands this 21st day of October, 1808.
JOB IRISH.
BETSEY MATHEWSON. ELIAS SATTERLEE.
These proofs were all in the hands of that committee ; and much more, abun- dance more, as will soon be recited. What becomes of the bold falsehood of "agreement to discontinue Mr. Carroll's ejectment"? Every evidence establishes the fact, that by sale to Overton and Welles Mrs. Mathewson had parted with all interest, and had none left to defend. Colonel Kingsbery deposes that was "the "reason why the said Elizabeth made no defence."
Again, let the averment as to conditionality of the deed be recalled, and confronted with the assertion as to discontinuance, and see on what gross absurd- ities the claim of Mathewson attempts to stand. What! did Henry Welles agree to discontinue unconditionally, on the faith of a conditional deed?
THE SATTERLEE LEASEHOLD.
Again, it is set forth in the report that Elisha Satterlee owned the Connecti- cut title to four of the lots claimed by Carroll's ejectment; that Mrs. Mathewson as to these four lots was siezed of nothing more than a leasehold, continued in her occupancy. It also appears, by deposition of Elisha Satterlee himself, that Mrs. Mathewson had notified him of Carroll's ejectment, and warned him to de- fend his claim to the lots in her tenancy. Mrs. Mathewson's deed then, as to these lots, might be held to have no virtue further than transfer of leasehold; and leave still under question a possessory right in Satterlee.
Did Henry Welles, then, or George Welles, agree to discontinue Mr. Car- roll's ejectment, when forty acres of the flat covered by the ejectment might be questioned as not fully conveyed by her deed, as the law was then supposed to be ?
It is true that the unconfirmed Connecticut title, being a rebellious holding against the laws of the State, could not sustain a descent, or support the relation of landlord and tenant, or be in any manner countenanced or considered as having life under the laws of this Commonwealth; but this legal deduction from original principles had not at that period been developed by the courts.
And now we reach another body of testimony, entirely unknown to Henry Welles, that was all this while in the hands of the leading member of the Com- mittee, and full of evidence negativing every assertion that he imposed upon the House. These papers were permitted to remain UNKNOWN to Henry Welles, throughout the whole examination ; and [were] afterward produced and quoted in debate, when time would not admit of a careful examination, whereby their favor- able character could be ascertained, and an unfair use of them detected.
JUDGE HUSTON'S NOTES OF EVIDENCE IN MATHEWSON VS. SATTERLEE.
It is set forth in the report "that Elisha Mathewson was owner of some lands "[Connecticut title] on the opposite side of the river ; and Elisha Satterlee owned "four ten acre lots [Connecticut title] adjoining Mathewson on Tioga Point. By "an agreement between Mathewson in his lifetime, and Satterlee, Mathewson oc- "cupied and used Satterlee's lots on the Point, and Satterlee occupied and used "Mathewson's land on the opposite side of the river."
604
APPENDIX A
The right of Elisha Satterlee to the lots on Tioga Point occupied by Elisha Mathewson as his tenant in exchange, ceased, October 1807, by judgment against the terre-tenant, Elizabeth Mathewson, in favor of Charles Carroll. Those lands being thus lost, John F. Satterlee, son of Elisha Satterlee, April 1, 1812, purchased the old Pennsylvania title of Joseph Wharton, under patent August 17, 1781, cov- ering the lands on the east side of the river, which Elisha Satterlee had received of Elisha Mathewson, on their exchange of use. Elizabeth Mathewson, supposing that the survey of Wharton could not be proved, had, a short time previous to this, to wit, January 10, 1812, taken out a warrant under the commonwealth for the same land, then in possession of Elisha Satterlee; on which warrant, survey and patent issued to her in trust for the heirs of Elisha Mathewson, February 19, 1813. During the year 1813, she made two several attempts to recover the possession from Elisha Satterlee under the landlord and tenant law; but failed in each. Finally she brought ejectment against Elisha Satterlee and John F. Satterlee, as of No. 60 Dec. Term, 1820, Bradford County ; which came on for trial at a special court. September 1821, before President Judge Charles Huston ; and the mass of papers spoken of, are his notes of evidence taken on that trial.
The plaintiff, Mathewson, sought to recover in that cause, first, by the de- ficiency of Wharton's survey, or the failure of its proof ;- second, by the supposed lease of Mathewson to Satterlee, whereby the latter came into possession. Setting aside the question of survey as irrelevant to this case, it is obvious, that to place himself on equitable grounds before the jury, it became Satterlee's interest to show that Mrs. Mathewson had sold to Henry Welles the lots of his which her husband and herself had held on Tioga Point under the exchange. Accordingly he did produce in evidence her deed to Henry Welles, conveying in the fullest manner all rights or lots on Tioga Point which Elisha Mathewson died seized of; as also all her own and the executors' occupancies and possessions on the premises, ex- cepting the house and lot only. On the other hand, it became Elizabeth Mathew- son's interest to prove that, notwithstanding her deed to Henry Welles, Satterlee's right to the lots on Tioga Point, which she had occupied under the exchange, had not been affected by her act, and was still unimpaired; then-
Firstly: If she could have shewn that Henry Welles had gotten possession of Satterlee's lots, inter alia, fraudulently, under an habere facias issued on a judg- ment entered after a discontinuance had been agreed on, that would have been good evidence in her behalf.
Secondly: If she could have shewn that her deed to Henry Welles was con- ditional, and void by failure of condition, that would have been good evidence in her behalf.
Thirdly: If she could have shewn that Henry Welles did not receive pos- session under her deed, that would have been good evidence in her behalf.
Fourthly: If she could have shewn that she sold by that deed only her lease- hold estate under Elisha Satterlee, that would have been good evidence in her behalf; and admissible, also, for it might not go to contradict her own sealed in- strument. It is clear that the establishment of these points must have been ma- terial to the equity of Mrs. Mathewson's cause. The voluminous notes of Judge Huston show that no stone was left unturned.
1. Did Elizabeth Mathewson prove, or, attempt to prove, on the trial before Judge Huston, that Henry Welles, three days before the return day, had agreed to discontinue the ejectment, and of course that the possession obtained under habere facias was wrongful, and could be broken up on application to the Circuit Court ?
There is one expression in Judge Huston's notes of Henry Welles' testi- mony as follows: "A suit was pending in the Federal Court, returnable to next "October, which ended in this compromise." The literal meaning of this sep- arated passage, is, that there was a compromise that ended the suit; but there are evidences on the face of the same papers, showing that the Judge has put down words different from those used by the witness. One is this : the literal meaning of the passage is entirely incompatible with that which immediately follows; for only three lines below the notes continue thus: "Judgment had gone by default
605
HENRY WELLES' DEFENCE
"in Philadelphia-she went on and began to plow-a dispute-I got a writ of pos- "session, and the marshal put me in possession." Now it is evident that the wit- ness could not have said in one breath, that the suit was discontinued October 8th, and in the next breath that he took out a writ of possession on a judgment entered in that suit after discontinuance. The suit resulted in a compromise with Henry Welles, but there is no evidence that it was "ended." Another evidence is, that no such pretence is countenanced by the notice which the subject received in the judge's charge, as will be seen hereafter.
2. Did Elizabeth Mathewson prove on that trial, or attempt to prove, the other point alleged in this case, and which, if true, would have been material in that; to wit, the conditional nature of the deed, and the failure of that condition ?
Examine the testimony. Not one word was said on this subject. No such pretence was set up on that trial. No such story had been invented THEN. Joseph Smith was there and examined; but Mrs. Mathewson's pretended reason for the temporary retention of the deed by David Paine had not THEN been inserted in his memory.
Thomas Overton was there, and examined; but no question of this nature appears to have been put to him; though he, of all men, was the very man who would have been questioned on that subject, if any such thing had existed in truth.
John Franklin was there, and examined at great length; but he had THEN no such hearsays to "believe."-
Joseph Kingsbery was there, and examined ; but he had nothing THEN to say about the all important fact, which he now swears was proved on trial of the tres- pass case. and "DECIDED" it. He was not making up a secret, ex parte affidavit THEN ; but stood on open ground, in presence of Henry Welles, under examina- tion of counsel, and on oath before court and jury.
3. Did Elizabeth Mathewson then prove or attempt to prove, that Henry Welles did not receive possession under her deed? No such testimony appears to have been attempted. Henry Welles is noted as having said, "We built a corn- "house on one of the lots the fall after the deed." The erection of this corn-house was admitted by Mrs. Mathewson before the committee of last session; alleging that it was on one of Satterlee's lots. The judge's minutes contain a palpable in- accuracy on this subject ; a few lines below his mention of the corn-house, built during a possession under the deed in November 1807, he notes Henry Welles as saying on cross examination, "I did not get possession under this deed." It is obvious that the witness must have said that the undisputed possession which he then held was not obtained under Mrs. Mathewson's deed, but under Mr. Car- roll's ejectment; as is explicitly said in the notes of his examination in chief, a few lines before.
4. Did Elizabeth Mathewson prove on that trial that she sold to Henry Welles only her leasehold possession of the four lots which she occupied in ex- change under Elisha Satterlee?
The deed conveys all right. title, claim and demand which Elizabeth Mathew- son and Elias Satterlee, as executors, had in, or to all those lots and parcels of land which they then occupied and possessed on Tioga Point; meaning by these presents to convey to said Henry Welles, all the right to the aforesaid tracts or par- cels of land which Elisha Mathewson died seized of ; as also the right of possession which the aforesaid Elizabeth then held by actual occupation, or otherwise, except- ing only the house and lot.
The whole scope of evidence in Mathewson vs. Satterlee shows that Eliza- beth Mathewson was then in possession of the four lots ; or to put it on the closest grounds that can be pretended, that these lots came fully within the clause con- veying "the right of possession which the aforesaid Elizabeth now holds by actual "occupation, or otherwise." That this clause includes them cannot admit of dis- pute ; for it is granted by the whole proceeding that no re-exchange had taken place. Her declarations then, as to Satterlee's lots, are of no avail against the express conveyance of her right of possession; and her disclaimer of possession is of no avail against the fact of actual possession, and right of possession, which is in evidence. Her declarations cannot go to avoid her sealed instrument ; but
606
APPENDIX A
they may go to prove notice to Henry Welles and George Welles as to the nature of her right in those four lots; which was only a tenancy by exchange under Elisha Satterlee. Her words then, attested by Joseph Smith and Thomas Over- ton, are evidence of that notice.
What consequence is deducible from this? Why, that with this repeated warning in their ears, George Welles, or Henry Welles, could not possibly have been so insane as to have agreed to a discontinuance of the ejectment ; by the re- sult of which, alone, the rights of Satterlee were to be concluded.
[It may be well enough to add here, that the Welles third included only about one half of Mathewson's possessions covered by the ejectment ; the remain- ing half, belonging to the Carroll two thirds; and of course, that Henry Welles, though interested in the suit, had no power to discontinue it; and this was well known to the Mathewsons and all others concerned. C. F. W.]
JUDGE HUSTON'S CHARGE.
Furthermore, to shew Judge Huston's view of this branch of the testimony between Mathewson and Satterlee on that trial, we will recite all the mention which he makes of it in his charge to the jury :
"But it is said that Mrs. Mathewson lost, or gave up, the lands on the Point "held under Elisha Satterlee; and therefore she cannot recover for her children, "(read the testimony on this point) : You will decide whether there is not proof "that Satterlee had notice of the suit against her, and even consulted very dis- "tinguished counsel on the case. You will consider whether the loss of that land "was not a misfortune common to such titles, and inevitable until the Compromis- "ing Law ; a misfortune, but not the fault of any person ; at all events even if she "was culpable, that is no bar to the recovery in this case."
It is evident that this charge recognizes Mrs. Mathewson as having suffered an inevitable loss at law; as having given up the Satterlee lots blamelessly, after notice to her landlord. Nothing appears to indicate any suspicion of unfairness about the transaction, either as to her conveyance, or as to the possession under habere facias. Such would not have been the language of Judge Huston had any of the allegations now set up been even suggested before him. Nothing appears in the charge, nothing in the notes, to countenance these allegations ; hence it fol- lows, that even by these papers, in addition to all the other testimony, it was pal- pable before the committee, that the allegations of conditional deed, unfair deliv- ery, and discontinuance of ejectment, were recent pretences, invented since the trial between Mathewson and Satterlee in September 1821.
But there is yet other evidence, coming still nearer home; the very paper which the committee who returned that Report were designated to examine; the petition of the party herself, dated November 30, 1822. Does that paper say that it was agreed by Welles, in the arrangement of October 8, 1807, that "the eject- "ment should be discontinued," and that "Mrs. Mathewson was led to believe it "was at an end" ? No such thing! The petition says, that her deed "was placed in "the hands of a third person, to be delivered on the performance of certain con- "ditions ; and although the condition was never performed, the deed was delivered "without her consent. By this negotiation she was DELAYED from making any "defence, and judgment passed against her by default." Even the petitioner does not say that the action was to be discontinued; but that she was thus delayed from making a defence! Hence it appears, not only that the allegation of discon- tinuance is a recent pretence, but that it is not even among the INVENTIONS of the petitioner !
POSSESSION UNDER THE DEED.
The next item to be shewn is that shortly after execution of the deed, October 8, 1807, Henry Welles went into quiet possession of the lands purchased of Mrs. Mathewson, built a corn-house on one of the lots, and continued in oc- cupancy undisturbed, until Mrs. Mathewson attempted to resume possession, about the 1st of April, 1808.
We shall show that there was legal evidence before the committee of Henry Welles' possession at the commencement of the month of April; nevertheless let it be seen what the report says about it.
607
HENRY WELLES' DEFENCE
"Mrs. Mathewson, in the Spring of 1808, continued to farm the land as "usual, when Henry Welles attempted to take possession under the deed. Mrs. "Mathewson however succeeded in resisting him, and Welles instituted an action "of trespass done and committed 'on real estate, against Mrs. Mathewson."
Now every man of common information, and certainly every lawyer, knows that the action of trespass on the close, is a possessory action, and will not lie, unless the plaintiff was, at the time of trespass, actually in possession of the premises infringed upon. John Saltmarsh, Esq., the justice who issued the sum- mons, Colonel Joseph Kingsbery, John Shepard and Samuel Gore, Esquires, ref- erees, were all men of full information in this respect. Stephen Sedgwick, Esq., an eminent attorney, advised the action and attended for the plaintiff. Job Irish, a pleader uncommonly shrewd and skillful, appeared for the defendant; and no witness says that any plea was moved against the plaintiff's right to institute such action ; but all agree that the plea was against the justice's jurisdiction over it, in consequence of defendant's oath that the title to the land would come in ques- tion. The justice's docket, and the defendant's oath against further procedure, is the highest possible admission of the plaintiff's right to institute within the justice's limit, but not to try land titles there. This conclusive proof as to right of action, was in the hands of the committee, when drafting the report that mis- states and denies it. There was also in the hands of the committee at that time, the marshal's return upon the habere facias of Charles Carroll, in which, after describing one of the lots delivered, Mr. Hart adds, that "on this lot Henry Welles "has built a corn-house;" which of course must have been erected between the dates of October 8, and April 1; and could not have been done without peaceable possession.
Furthermore, it was expressly admitted by Mathewson, in presence of Henry Welles before the committee, that Henry Welles did built the corn-house there, as set forth in the marshal's return, but she alleged that "it was on one of Sat- "terlee's lots." Now it was apparent before the committee that the deed makes no distinction between Mathewson's and Satterlee's lots; and as the whole lie within a common enclosure, the possession of a part is a possession of the whole.
This fact of quiet possession from October 1807 to April 1808, proven by the corn-house, and by the trespass suit, is not however material to this question ; further than it shews that Welles went into immediate possession, unopposed ; which could not have been the case, had it not been in accordance with the agree- ment of October 8.
CHANGE IN MRS. MATHEWSON'S VIEWS.
It has been shewn that in the month of November, 1807, Henry Welles was in quiet possession under Mrs. Mathewson's deed, and building upon the land undisturbed; but that in the month of April following, Mrs. Mathewson had adopted a new idea, and was determined to resume the occupancy. The exact period at which this change in her designs occurred, cannot be ascertained ; but there are passages in the testimony that throw some light upon it. and the date of the change may assist in discovering the cause.
Thomas Overton deposes, that a short time before his first installment be- came due, in April 1808, he offered to pay Mrs. Mathewson the money and that she declined it; saying that she would rather have it all in one payment, lest she might be induced to lend it. It is not certain whether or not she was sincere in this; but Mr. Overton testifies that shortly after that tendry, her children began to spread their threats that they would not concur in their mother's sale. When the second installment became due, and he came up to pay it, he was told that the heirs would not consent to the sale; but would claim the house and lot whenever their mother's life estate should cease. One of the children, grown up to woman- hood, menaced him in her mother's presence; saying, that he "might depend upon it the children would call upon him." It is obvious, then, that at that time there was a family design to prevent Overton's adherence to his contract for the house and lot ; and in all probability that design had commenced in embryo before her declination of the first offer of payment. Hence it is evident that at some period about February or March 1808, a change had commenced in her views, which de-
608
APPENDIX A
cided her to prevent Overton, if possible, from adhesion to his contract. The cause for this change may perhaps be found.
Doctor Robert H. Rose, agent for the Pennsylvania owners of all the north- western section of the present county of Bradford, sojourned at Tioga Point dur- ing the Winter of 1807-8; laboring to effect a compromise with the numerous Connecticut settlers in possession of lands belonging to his employers. Ex- periencing considerable opposition, stimulated in a great measure, by inhabitants of the river towns, he found it necessary to divide their strength, if possible; and attempted to effect it, by throwing out to the settlers on the river, a hope that the Legislature might be induced to extend the compromising system unto the townships of Athens and present Ulster. Coming from such a source, the hope was accepted by some, although repelled by others; and it is probable that from this period Mrs. Mathewson began to conceive ideas from which arose the hope that by frightening Overton from fulfillment of his contract, she might destroy the consideration, and thus invalidate the deed to Welles; go into possession again, and hold on until the promised act should pass. It is not improbable that she may have thought the transaction of October 8, 1807, might be so described as to in- validate the recovery in ejectment, or that it might be in some way prevaricated.
In shewing, from these public circumstances, that the first suggestion of an extended Compromising Law, to include Tioga Point, was made in February 1808, it is evinced that at the date of the amicable arrangement and judgment in default in October 1807, no idea of any such measure existed in the country ; of course that at that period neither Henry Welles nor Mrs. Mathewson, nor her advisers, had foresight of such proposition ; and consequently, that in acceding to the pro- posal, which it is in proof was made on behalf of Mrs. Mathewson, Henry Welles was not influenced by apprehension of any such act of assembly ; but conferred a benefit of value, and received none, any further than it may have been preferable to acquire possession amicably, rather than by the marshal's process.
Although the idea of petitioning for an extension of the Compromising system, was in February 1808, a topic in the country, nevertheless it was clearly a very hopeless project. The jurisdiction of Pennsylvania was by this time so far efficient as to enable owners under the Commonwealth to obtain possession with- out bloodshed ; the formidableness of the Connecticut association was broken down; the spot to be petitioned for was obnoxious as the last retreat of rancorous opposition ; the temper of the Legislature was rising against the then existing Compromising Laws, as still appears of record in their suspension by the Act of March 28, 1808, passed during the very winter now under consideration; and hence it is apparent, that throughout the summer of 1808, the prospects of the suggested application must have been governed by all these decidedly hostile cir- cumstances. Henry Welles, then, had the amplest reason to know that the Legis- lature of that period, even if possessed of constitutional power, would pass no act in the least degree injurious to the interests of any claimant under Pennsylvania ; therefore his movements in this case could not have been influenced by any such apprehension. Premising this, we shall proceed to the narrative of the case ; which, as the particulars have been mostly anticipated, may now be passed with brevity.
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