Swink v. Swink, No. 49264

CourtMissouri Supreme Court
Writing for the CourtPER CURIAM
Citation367 S.W.2d 575
PartiesJ. O. SWINK, (Plaintiff) Appellant, v. J. Ed SWINK, Myra Swink, Florence Swink Matthews, Lyman A. Matthews, (Defendants) Respondents
Decision Date08 April 1963
Docket NumberNo. 2,No. 49264

Page 575

367 S.W.2d 575
J. O. SWINK, (Plaintiff) Appellant,
v.
J. Ed SWINK, Myra Swink, Florence Swink Matthews, Lyman A.
Matthews, (Defendants) Respondents.
No. 49264.
Supreme Court of Missouri, Division No. 2.
April 8, 1963.
Motion for Rehearing or for Transfer to Court En Banc Denied
May 13, 1963.

Page 576

McClintock & Medley, Charles W. Medley, Flat River, for appellant.

Finch, Finch & Knehans, Lehman Finch, Cape Girardeau, Roberts & Roberts, Raymond S. Roberts, Farmington, for respondents.

BARRETT, Commissioner.

This is an action to recover $80,371.67 actual and punitive damages for alleged breach of covenant in a warranty deed. The plaintiff is Judge J. O. Swink and the defendants are two of his seven surviving brothers and sisters, J. Ed Swink and Florence Swink Matthews, and their respective spouses. The land out of which this controversy arose consists of a tract in Illinois, known as Moro Island, and three pieces of property in Missouri, apparently of lesser value, designated as the Fleming, Peers and Griffin tracts. Prior to the death of their parents, E. E. and Lillie Swink, in 1940, this and other property was part of an inter vivos trust created in 1935 by the parents for the benefit of their children or their descendants, which included the plaintiff and his now defendant brother and sister. It is not necessary to a determination of this appeal to accurately describe and record the history of each of these tracts of land, it is sufficient to say that there was a settlement and division of the trust property among the heirs of E. E. and Lillie Swink. And the plaintiff and his brother Emmett D. Swink once had the title to these particular properties because on December 28, 1938, for a recited consideration of $20, they and their wives by warranty deed conveyed the property to the defendant brother and sister 'Florence Swink Matthews and J. Ed Swink, Trustees.' The habendum clause in this deed contained the usual covenants of seizin in fee, right to convey and freedom from encumbrances. It also recited the customary warranty 'against the lawful claims and demands of all persons whomsoever.' Thereafter, on May 29, 1940, the now defendants J. Ed Swink and Mrs. Matthews, together with her husband Lyman and his wife Myra, as parties of the first part joined in a conveyance,

Page 577

to illustrate, of Moro Island, to J. O. Swink for a recited consideration of $21,000. While this deed was signed and executed by both husband and wife and there was a warranty to defend against 'the lawful claims and demands of all persons whomsoever,' the covenant was that 'the said J. Ed Swink and Florence Swink Matthews, Trustees, hereby covenanting * * *.' This suit for actual and punitive damages is based upon this deed and its covenants.

In his petition the plaintiff alleges as a breach of the covenants that on April 6, 1959, Alma Swink Paulson, another sister and a resident of Bryan, Texas, instituted an action against him in the United States District Court for the Eastern District of Missouri claiming that she 'was the owner in fee of 1/3 of the above real estate' and was also entitled to 1/3 of the proceeds ($225,000) of a sale by him to Kaiser Aluminum Company of the mineral rights in Moro Island. He alleges that by reason of this suit by his sister he was compelled to employ counsel and finally 'was compelled to purchase the outstanding 1/3 interest of Alma Swink Paulson in said real estate for a consideration of $50,000,' and that by reason of this failure of title he was entitled to recover from these defendants $30,371.67 and costs, and because of their willful and malicious representations $50,000 punitive damages.

In response to the plaintiff's two-count petition each defendant has filed a separate answer. In general the answers admit the execution of the deed but set up the action by Mrs. Paulson in federal court and state that the purpose of that action was to assert and establish her right to a one-third interest in the property and to impress a constructive trust upon the title held by plaintiff. The allegations of Mrs. Paulson's petition were set forth; in these she asserted that when the trust estate was distributed this particular property was conveyed to J. O. Swink, it being understood that he, Ruth Swink Clark, another sister, and Mrs. Paulson 'were each the owner of a one-third (1/3) undivided interest therein.' Thereafter each defendant filed a motion for summary judgment, together with affidavits, exhibits and depositions, particularly from Mrs. Paulson's federal court case. The plaintiff filed an affidavit in opposition to the defendants' motions for summary judgment, and, subsequently, he also moved for summary judgment.

Upon the submission of the motions for summary judgment the trial court found and decreed that the defendants did not warrant the title to the...

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10 practice notes
  • Kaw Valley State Bank and Trust v. Commercial Bank of Liberty, N.A., No. KCD
    • United States
    • Missouri Court of Appeals
    • June 12, 1978
    ...and if as a matter of law the judgment is sustainable upon any theory, the judgment of the trial court will be sustained. Swink v. Swink, 367 S.W.2d 575 (Mo.1963). Kerr v. Grand Foundries, Inc., 525 S.W.2d 783 (Mo.App.1975). It is not necessary to this review to consider summary judgment pr......
  • State upon Information of Reardon v. Mueller, No. 31924
    • United States
    • Missouri Court of Appeals
    • January 19, 1965
    ...as the trial court ought to have given.' Brown v. Prudential Ins. Co. of America, Mo.App., 375 S.W.2d 623, 628; Swink v. Swink, Mo., 367 S.W.2d 575, 578; Landers v. Smith, Mo.App., 379 S.W.2d 884, 886. 'As said in many cases the question of the sufficiency of the evidence raises an issue of......
  • Spires v. Lawless, No. 9262
    • United States
    • Missouri Court of Appeals
    • February 12, 1973
    ...not be reversed because the trial court based its judgment upon an incorrect or insufficient reason, as noted in Swink v. Swink, Mo., 367 S.W.2d 575, 577--578(1--3), and Landers v. Smith, Mo.App., 379 S.W.2d 884, 886(1), neither of those two cases purports to state fully the rules governing......
  • Reis v. Metropolitan St. Louis Sewer Dist., No. 49875
    • United States
    • Missouri Supreme Court
    • December 9, 1963
    ...Mo.App., 347 S.W.2d 436; Jacobson v. Vestal, Mo., 361 S.W.2d 677; Oakley v. Duerbeck Company, Mo., 366 S.W.2d 430; Swink v. Swink, Mo., 367 S.W.2d 575; Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678. The real, and only, question here is whether the depositions raise any genuine issue of f......
  • Request a trial to view additional results
10 cases
  • Kaw Valley State Bank and Trust v. Commercial Bank of Liberty, N.A., No. KCD
    • United States
    • Missouri Court of Appeals
    • June 12, 1978
    ...and if as a matter of law the judgment is sustainable upon any theory, the judgment of the trial court will be sustained. Swink v. Swink, 367 S.W.2d 575 (Mo.1963). Kerr v. Grand Foundries, Inc., 525 S.W.2d 783 (Mo.App.1975). It is not necessary to this review to consider summary judgment pr......
  • State upon Information of Reardon v. Mueller, No. 31924
    • United States
    • Missouri Court of Appeals
    • January 19, 1965
    ...as the trial court ought to have given.' Brown v. Prudential Ins. Co. of America, Mo.App., 375 S.W.2d 623, 628; Swink v. Swink, Mo., 367 S.W.2d 575, 578; Landers v. Smith, Mo.App., 379 S.W.2d 884, 886. 'As said in many cases the question of the sufficiency of the evidence raises an issue of......
  • Spires v. Lawless, No. 9262
    • United States
    • Missouri Court of Appeals
    • February 12, 1973
    ...not be reversed because the trial court based its judgment upon an incorrect or insufficient reason, as noted in Swink v. Swink, Mo., 367 S.W.2d 575, 577--578(1--3), and Landers v. Smith, Mo.App., 379 S.W.2d 884, 886(1), neither of those two cases purports to state fully the rules governing......
  • Reis v. Metropolitan St. Louis Sewer Dist., No. 49875
    • United States
    • Missouri Supreme Court
    • December 9, 1963
    ...Mo.App., 347 S.W.2d 436; Jacobson v. Vestal, Mo., 361 S.W.2d 677; Oakley v. Duerbeck Company, Mo., 366 S.W.2d 430; Swink v. Swink, Mo., 367 S.W.2d 575; Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678. The real, and only, question here is whether the depositions raise any genuine issue of f......
  • Request a trial to view additional results

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