Wynne v. Parke (89 Tex. 413, 1896)

BROWN, Associate Justice.

On the 38th day of July, 1893, Sarah J. Wynne, Mrs. A. J. Hill—joined by her husband Edward Hill—E. Randle Horton, Gus Horton and Robert Horton, sued O. G. Parke in the District Court of Hays County to recover 1380 acres of land in that county patented to Margaret Dunn. On the 15th day of February, 1893, the plaintiffs filed an amended petition, in which it was alleged that Sarah J. Wynne had purchased the interests of Henry B. Andrews, E. V. Andrews, Robert W. Andrews, Maud Andrews and Mrs. L. B. Page, Mrs. S. V. James and Mrs. Ella B. Halsey, in the land sued for, which interests were acquired by Sarah J. Wynne in the year 1892; subsequently Ben Andrews made himself a party plaintiff, claiming an interest in the land, whereby the plaintiffs claimed all of the lands in controversy.

The defendant plead not guilty and the statutes of three, five and ten years limitation, and also plead valuable improvements made in good faith under proper allegations.

The plaintiffs by supplemental petition replied that Amanda J. Wynne died January 9, 1889, and no administrator had been appointed on her estate, and that Mrs. Horton died in 1887 and no administrator had been appointed on her estate, and also the coverture of Mrs. Horton, Mrs. Page and Mrs. Hill, and the minority of E. Randle, Gus and Robert Horton, and Maud Andrews.

Trial was had before the judge who filed conclusions of fact which were adopted by the Court of Civil Appeals, and are in substance as follows: Robert and Amanda J. Wynne were married in 1823 and the land in controversy was conveyed to Robert H. Wynne by Margaret Dunn in 1842. Robert H. Wynne died in 1866, leaving surviving him Ms widow Amanda J. and their five clfildren—Martha Emma, Sarah J., Amanda Jeanette, Mary Ella and Robert Harrison Wynne.

Martha Emma married H. B. Andrews and died April 13, 1874. She made a will by which she gave all of her interest in the estate of her father Robert H. Wynne to her mother, which will was duly probated. At her death, Martha Emma Andrews left surviving her H. B. Andrews, her husband, and the following children: Ben, born in 1862; Julia J. Page; Edwin B. Andrews, born in 1856; Robert W. Andrews and Sarah B. James. Julia Page and Sarah B. James were married when defendant’s possession began.

Robert Harrison Wynne died in 1876, unmarried, leaving as Ms heirs his sisters Sarah H., Amanda Jeanette and Mary Ella and the children of Martha Emma Andrews and also a grand-daughter of the latter, Maud Andrews, and his mother Amanda J. Wynne.

Amanda Jeanette Wynne married Sidney Brower in 1860, who died prior to 1886, and in 1890 she married Edward Hill.

In 18G9 Mary Ella married Gus Horton and died November 19, 1887, leaving three children, E. Randle, Gus and Robert, all minors when the suit was commenced, except Gus, who was over twenty-one years of age.

On the 6th day of August, 1878, Amanda J. Wynne, the widow of Robert H. W)mne, owned one-half of the land as her community interest therein, one-tenth derived through the will of Mrs. Andrews, and one-twentieth part as the heir of Robert Harrison Wynne, her son, making in all thirteen-twentieths of the land in controversy. Sarah J. Wynne owned one-tenth part of the land as heir of her father Robert H. Wynne and one-eightieth part as the heir of her brother Robert Harrison Wynne, malring nine-eightieths of the whole. On the date last named Amanda J. Wynne and Sarah J. Wynne made the following power of attorney:

“Know all men by these presents, that we, Amanda J. Wynne, widow of, and Sarah J. Wynne, daughter of, Robert H. Wynne, deceased, residents of the City and County of Galveston, State of Texas, have made, constituted and appointed, and by these presents do make, constitute and appoint Gustaras Horton, of the City of Calvert, County of Robertson, State of Texas, our true and lawful attorney for us and in our name and stead to hunt up, develop, establish and dispose of all land and land claims belonging to the estate of Robert H. Wynne, deceased, of which we are lawful heirs, and generally to represent and manage our interests in said estate, giving and granting unto our said attorney full power and authority to do and perform all and every act and tiring whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as we might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that our said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In witness whereof we have hereunto set our hands and seals, the sixth day of August in the year one thousand eight hundred and seventy-eight.

“A. J. Wynne.

“Sarah J. Wynne.”

March 24,1880, Gus Horton appointed A. C. Herndon substitute agent by a writing in which the following recitals are contained: c