Plaintiffs received a monetary judgment against defendant. Thereafter, plaintiffs requested, and there was issued, a general *848 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’ excéptions 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,
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,
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,
Creditors may reach funds in the bank account of another if the funds actually belong to the debtor.
Hilke v. Bank of Washington,
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. These 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 *849 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 entire-ties 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,
The account was not defendant’s but an account owned by defendant and his wife as a “single person”. See
Leuzinger,
supra,
If plaintiffs wished to attach the account, it should have been accurately described. By not describing the account as that of defendant and his wife the account was never attached.
On the necessity of the writ or notice of garnishment and summons to describe the account sought see
Staley v. Brown,
We think the result reached here also has practical considerations. If the bank impounds an entireties account due to a garnishment seeking only the property of one of the tenants, it could be liable for wrongful dishonor. See
Andree v. Equitable Trust Company,
The judgment is affirmed.
Notes
Although apparently well established in Missouri law and not challenged here, the author of this opinion questions the practicality of considering bank accounts as entireties property, particularly where one person alone can draw on the account. One of the tenants cannot sell entire-ties property and involuntary partition will not lie, but often one person can draw on and completely extinguish a "joint" bank account. The cases do not seem to turn on whether one or both can draw on the account. Apparently ‘by agreement ... the money can be paid to ... only one” and the account be held by entireties. See
Leuzinger,
supra,