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11/20/84 JAMES R. VAUGHN AND JOAN VAUGHN v. ELLIS

November 20, 1984

JAMES R. VAUGHN AND JOAN VAUGHN, PLAINTIFFS-APPELLANTS,
v.
ELLIS E. SPITZ, DEFENDANT, AND WRIGHT COUNTY BANK, GARNISHEE-RESPONDENT



From the Circuit Court of Greene County; Civil Appeal; Judge John A. Appelquist.

Motion for Rehearing Overruled, Transfer Denied December 12, 1984.

Before Hogan, P.j., Prewitt, C.j., Maus, Crow, JJ.

The opinion of the court was delivered by: Prewitt

Plaintiffs received a monetary judgment against defendant. Thereafter, plaintiffs requested, and there was issued, a general execution and garnishment proceedings toward garnishee Wright County Bank. Interrogatories were then submitted by plaintiffs to the garnishee. By its answers to the interrogatories garnishee denied any obligation to defendant, and stated that defendant "does have a joint checking account with his wife, Elsie Spitz."

Plaintiffs' exceptions to garnishee's answers to interrogatories admitted that defendant and his wife had a joint bank account and that the bank had no other personal property of defendant in its possession or control. The exceptions alleged that defendant had deposited more than $2,700 into the bank account. Plaintiffs claimed that defendant was the sole owner of these funds and that the deposit was a transfer without consideration and in fraud of creditors contrary to the provisions of § 428.020, RSMo 1978. Plaintiffs asked the court to order garnishee to pay the $2,700 into court for plaintiffs' benefit. The trial court sustained garnishee's motion to dismiss and plaintiffs appeal.

Where a husband and wife hold a bank account as joint tenants it is presumed to be held as tenants by the entirety. Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, 396 S.W.2d 570, 580 (Mo. banc 1965). Ownership of bank accounts in this manner has long been recognized in Missouri and in some other jurisdictions. See Annot., Estates by entirety in personal property, 64 A.L.R.2d 8, 79 (1959). That the account here is held as tenants by the entirety is not disputed.*

An execution arising from a judgment against the husband alone ordinarily cannot affect a bank account or other property held by a husband and wife as tenants by the entirety. Hanebrink v. Tower Grove Bank & Trust Company, 321 S.W.2d 524, 527 (Mo.App. 1959). See also Annot., 11 A.L.R.3d 1465, 1484 (1967). But cf. Huff v. St. Louis Postal Employees Credit Union, 457 S.W.2d 239 (Mo.App. 1970) (entireties account subject to set-off for note signed only by husband).

However, if the creditor contends that the debtor created apparent ownership of his property so as to defraud creditors, a garnishment proceeding is an appropriate proceeding to determine if there has been a fraudulent transfer. Harrison v. Harrison, 417 S.W.2d 39, 42 (Mo.App. 1967); McDaniel v. Bryan, 123 Mo. App.640, 100 S.W. 1103, 1104 (1907).

Creditors may reach funds in the bank account of another if the funds actually belong to the debtor. Hilke v. Bank of Washington, 251 S.W.2d 963, 966 (Mo.App. 1952); Baden Bank of St. Louis v. Trapp, 180 S.W.2d 755, 759 (Mo.App. 1944).

The notice of garnishment and summons to garnishee is not in the record, but the request for execution and garnishment and the order for execution and garnishment do not mention Mrs. Spitz. Those documents seek a levy on real estate and a bank account at Wright County Bank. The appellants do not assert that the bank was notified that there was a claim against any funds in defendant and his wife's name, until the plaintiffs' exceptions were filed.

In dispute here is whether the notice of garnishment and summons to garnishee should have identified the bank account as held by defendant and his wife, rather than only referring to defendant. Garnishee contends that the notice and summons was ineffective to attach the joint bank account because it was not put on notice that the joint bank account was sought as the notice and summons only recited defendant's name and he had no bank account standing only in his name.

Due to the unique nature of entireties property, defendant did not have a bank account at the bank to be attached. In an entireties bank account as well as other entireties property, each of the tenants has an undivided interest in the whole of the property and no separate interest. Hanebrink, 321 S.W.2d at 527.

The account was not defendant's but an account owned by defendant and his wife as a "single person". See Leuzinger, supra, 396 S.W.2d at 580. "The money on deposit in a joint deposit of husband and wife does not belong to the husband, nor is it half the husband's and half the wife's or part his and part hers. The deposit, made in their joint names, and not to them or either of them, belongs to them 'undividedly'". Id.

If plaintiffs wished to attach the account, it should have been accurately described. By not describing the account as that of defendant and ...


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