Swink v. Swink
| Decision Date | 08 April 1963 |
| Docket Number | No. 2,No. 49264,49264,2 |
| Citation | 367 S.W.2d 575 |
| Parties | J. O. SWINK, (Plaintiff) Appellant, v. J. Ed SWINK, Myra Swink, Florence Swink Matthews, Lyman A. Matthews, (Defendants) Respondents |
| Court | Missouri Supreme Court |
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 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 property conveyed to plaintiff 'in their capacity as individuals.' The court found that Mrs. Paulson's suit 'was not an attack on the title' of plaintiff, but, by reason of an agreement that he would hold the property for the benefit of Mrs. Clark and Mrs. Paulson, was 'a suit to impress a trust on the title of J. O. Swink.' In addition, for reasons to be noted, the court found that the defendants 'were not guilty of any breach of warranty.' The court having determined that there was 'no genuine issue of facts to be determined under plaintiff's petition and defendants' answers' sustained the defendants' motions for summary judgment, and it is from the judgment entered upon this order that the plaintiff has appealed.
The parties to this cause have not insisted as they did in Jacobson v. Vestal, Mo., 361 S.W.2d 677, that the appeal be determined, whether properly applicable or not, upon the motion for summary judgment and particularly upon the accompanying depositions. The briefs do not comply with rule 83.05, V.A.M.R.; failure to plainly correlate abstract rules or statements to the facts or to the court's ruling has obscured the meritorious determinative issues. See Stone, 'Effective Appellate Briefs,' 15 Journ.Mo.Bar, 80, 84-88. Despite the lack of consistent articulated theory the appellant in effect contends, especially in view of his counteraffidavit, that there was an issue of fact to be determined and that therefore summary judgment procedure was not applicable because, in the language of the rule, the defendants have not shown 'by unassailable proof to be entitled thereto as a matter of law.' Sup.Ct.Rule 74.04. This essentially is the equivalent of reviewing a court tried or equity case, and eventually of resolving the always open question of the sufficiency of the evidence to support the judgment upon any possible theory and finally of entering such judgment upon the record as the trial court 'ought to have given.' Sup.Ct.Rules 73.01, 83.13. It is not necessary in this view to consider summary judgment procedure in detail, it is sufficient to note that a summary judgment is a determination as a matter of law that there is no issue of fact to be tried. Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678; Ieppert v. John Hancock Mutual Life Ins. Co., Mo.App., 347 S.W.2d 436. And here as is often the case 'Many of the decisions relating to motions for summary judgment involve simply the determination whether there is an issue of fact to be tried or whether the moving party is entitled to judgment as a matter of law.' 3 Barron & Holtzoff, Federal Practice and Procedure, Sec. 1247, p. 212. In this connection it is safe to venture the suggestion that if as a matter of law the judgment is sustainable upon any theory it is immaterial that some of the facts found or reasons stated by the trial court were not well founded.
Considering first the instrument itself, the deed of May 29,...
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