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Show FOUR PAGE BEEHIVE BANK because the opinion is based, not on equitable principles but simply on proof of intention other than clearly expressed in the agreement, which proof would seem to be inadmissible on the part of the plaintiff or the intervener. But I can concur in the instant case in its remand, since such procedure would be proper under the cases that prevailed at the time the joint account in this case was created. of Series On Lengthy Decision . Beehive State Bank, a corporation, Plaintiff and Respondent, FILED Defendants, First Security Bank A. At the expense of being the one that everyone is out of step with, I cannot agree with Mr. Justice Ellett' s dissent, since he bases it on his theory that the garnishment broke up the joint account by destroying the "four unities of title, interest, time and possession," - a theory which this court rejected and laid at rest in Hanks v. Hales, supra, and because it seems to be discordant with the rule he espoused in his opinion in the No. 11951 Deon Kosquist, et al. , M. of Utah, April 14, 1971 a corporation, Garnishee, If'red L. Painter, Intervener ard Appellant. , first Beehive case. L. M. Cummings, Clerk About two months after the In view of the history of joint accounts in this state, and the chronof events anent thereto, I think this second Beehive case should be ology first Beehive case, we had Continental Bk. . before us. This case had to do with a joint account in a commercial bar.U. We borrowed Ch. 17, Sec. 38, Laws of Utah 1961 U.C.A. 1953, as amended), Savings and Loan Act, to lay down the rule that the survivor of a joint savings account in a commercial bank was the owner thereof, and that such ownership was invulnerable to attack. This, by analogy to the building and loan association act. This decision and opinion were arbitrary but logical, and certainly deserve approval. That case in effect revived Neill v. and half of Holt v. Bayles, but left wandering in the "shifting sands" Royce, of joint accounts (about which Mr. Justice Ellett spoke in the first Beehive case) the matter of rights of the parties inter se or where the contract is attacked by third persons such as creditors. The Continental Bank case is inconsistent, however, when it repeats the rule laid down in the first Beehive Kin-.ball- . - (7-13-- 39, .7.1 v, mj., juBtice Ellett, since that rule, it is noted, does not restrict itself to inter vivos, inter se or creditor-attacke- d joint account cases, but as "prdcd, would apply to Continental Bk. v. Kimball, supra. I concurred in the continental case because it took us back at least to Weill v. Royce and the conclusive presumption of ownership in the survivor. I take it that since the joint c count was with a commercial bank and not a savings and loan association, and the fact that we applied the statutory rule applicable only to the latter, to a commercial savings bank, there can be no logical reason why this court should not apply the same rule to any and every joint account. Since Continental restricted its decision prospectively it would not be applicable in the instant case, since the joint account here had a 1964 date, and would be subject to the law at that time. Neither would Hanks v. Hales or Hobbs v. Fenton, a case discussed in the next paragraph, for the same reason. Two and a half years after Continental Bk. v. Kimball, we decided Hobbs v. Fenton, 18 Case No. 12105, January 12, 1971. A joint account created by one Buiilcr with his daughter was attacked by other surviving children after his death. The thrust of the complaint was that the bank account was created for the purpose of convenience. No equitable ground to reform the joint account, such as fraud, undue influence, mistake or the like was alleged. We said: 'The bank account and stock certificates constituted valid, enforceable written contracts. There were two grounds upon !, lcs,- jc-ir-t r : pc-!ii,- r issue where mistake fenton. suprs, clears mp ?;.y inconsistent ..... f at i.! ..r.-might be advanced in reading IMU v. Bay eg when one reads that Uobbs v, Fenton pra. from Hobbs v, Fenton. I it lh law under accept ""J r.rincli-- i:; ...L.j as limited by i'iO pjrc-and the principle that people should be able to contract '( 1 ss they aii' bound by their clear, unambiguous commitments reflect- ...! i".ui by .Lid ttain.;l all th ...r :i.v.''isiiv.i, save where m.A .. Ti vi . .1 ,i fill! aiU 90 ami.. ' 111 ir.'ii rajnn fi.i' sni'.u u.i'llts V. i.K'yit j, tt. Males, Ilo'ibs v. Ferton that would render their enforcement unconscionable in '"I hrut.- '.,,m - :n mind t'-.s- t iniert v. -- - :.-- v. ;. cor.cr-jvabl- Beehive State Bank v. Rosquist, 21 Utah 2d 17, 439 P. 2d 468 (1968). 2 That the Intervener presented no evidence that the joint deposit contract should be reformed or varied or that the same was unenforceable, 2. 3. That a garnishee. judgment should be entered in favor of the plaintiff for the full amount of the joint accourt. c r jvr i . Mr. and Mrs. Painter ostensibly had a joint bank account. Beehive State Bank as judgment creditor of Mrs. Painter attached the funds, claiming all of it. Mrs. Painter died, and Mr. Painter interpleaded himself and moved for a summary judgment for a release of all thi funds. This motion was by the trial court granted, and on appeal we reversed, saying: H -. r- I dissent. This is the second appeal in this case. The facts were set out in the former opinion. In substance, they are these: That the contract in the names of Fred L. Painter and Ila R. Painter created a joint tenancy relationship. cj--.attux concluding that the ?iiyu t! account was immune from :?ack !r;ss. "tru-1- , mistake, incapacity or other infirmity" is shown, also - i i t ;f intent in joint iti: ceases to he an issue. Reading the ... , with the fori.,-.:r- , it seenn ,vieot that the court in , ELLETT," Justice: (Dissenting) 1. I t! a. I would reverse prospectively all previous cases inconsistent with . Hobbs v. Fenton. tv. ran ant to the remand another trial was had wherein Mr. painter testified that he had deposited all of the funds in the account. The court thereupon signed a memorandum decision containing the following: we hav now gone almost full circle back to Holt .!,Ihe only?rkdifference might be said to be the fact that in Holt i. ut fund while she was alive, if any she had, should be applied toward the satisfaction of the appellant's judgment against her. i ji!-v- double-barrele- are of the opinion that this case cannot be settled by a summsrv iudpment based upon the undisputed evidence now before the court. The interest of Ila R. Painter in and to the "Since the appellant in not tryinp to reform the contract is not claiming fraud, mistake, incapacity, or other infirmity, we think that it is conclusively bound by the contract as made and cannot show that the parties intended a result contrary to that which the law of joint tenancy relationship .. " '.v.r . It would seem to this writer that the perennially troublesome problem of joint accounts might be resolved by a d spelled-oaccount joint agreement device in which the joint depositors agreed to own the funds in an amount represented by a fraction calculated according to their individual contributions, or in percentages to which they agree with the usual provision for complete and conclusive ownership by the survivor as is found in joint account agreements generally and customarily employed. Expanded laws along the lines of the present Savings and Loan legislation also might lend stability to such accounts and rescue them from the erstwhile shifting sands in which such accounts have been struggling to extricate themselves. We 1 v'. owns . T and we further said, quoting from Continental Bank v. Kimball: r-j- decided as the trial judge in the first case decided it: That at the time this case arose Mr. Painter, on the facts, pleading and the law, was, and consequently still is, the owner of all the funds in the joint account, for two reasons - that 1) he was the owner thereof under the cases applicable to this account, 2) the undisputed evidence showed he was intended to be such under this case, and 3) he undisputedly is the survivor of the fund which all the cases, absent fraud and the like, which is not the case here, say he If the contract between the parties ostensibly creates a joint tenancy relationship with full right of survivorship, there arises a presumption that such is the case unless and until some interested party shows'under equitable rules that the contract should be reformed to shr.v some other agreement of the parties or that the contract is not enforceable because of fraud, mistake, incapacity, or other infirmity. which plaintiff could assert his claim: one, the contract was void because of fraud, mistake, incapacity, or other infirmity, or, second, he was entitled to the equitable remedy of reformation of a written instrument because such instrument failed through accident, mistake, or fraud, or a combination of fraud and mistake to express the real agreement or intention of the parties. The latter case is premised on the theory that the parties came to an understanding, but in reducing it to writing, thr ough mutual mistake or mistake and fraud, some provision was orvittfrd or mistakenly inserted, and the action is to change the instrument to conform it to the contract upon which the an MONDAY, APRIL 26, 1971 TNE DAILY RECORD Thereafter, findings of fact, conclusion of law, ami judgment were duly signed and filed awarding all of the fund to the Beehive State Bank. Mr. Painter has appnnlcd from that judgment. l . 11- . t i . i T ' ; Chrt.-vei'-', .1 T -- I . We held in the prior decision tMt thy fcii.1 coulti i. aur.irl.cd and that the inter-- t therein, if any, of Mrs. Pnirtnr cosilii l. .i;?plir; :.u th,. satisfaction of judgment against her. The court apparently thought that boca-mMi v. had thf authority o draw all of the money from the account at the. ni .lishtnerit was served, tv t the entire fund could be applied pursuant to the the judgment creditor's account. This belief is not well founded. If a true joint tenancy relationship existed, as the court found it did, then there had to be four unities in existence between the joint tenants, viz.: unity of time, title, interest and possession. Each tenant must, therefoT, have the same interest in and to the fund as do all other tenants therein. e ti-rr- Il3:.s (19c.('J, rnac that nrrrticftMy : . ivt il H.1t v. after the creation of the joint account in ihc instant case I A) vi here because it wan decided after the joint account ..1V.V1V .' :.; :, .Mr.n? c:iae, nor can Continental Bk. v. Kimball ( 1968), nor "I follow ' ' thr i th : case-- , cf Fint 1H. v. !... liris, .1 ' . v. woula Imjalls Tangrin prevail here, being the law of 4iieMf thoy l cpectivoly . 1) wli' u' I) wpi-- i;. re a f ft ir-'"v ,y :. s! rlain ) what was i'. .. " - -- 11 f. : fr" I. m:h1i;c influence, mis- irrespective r t. v t.tivl fvidi T'ti le. Vliij leing tl. lav, t:r the C'.lfl. Ill . a 1?V C11 K'i i 'niil shiftinc sands of imrit account" . there ia murh tn be ;;url iur tl;i '.is fiv.t cise since it seeing obvious that Painter I) ownei in. ino..t:y, t) a pitt or something tantamount thereto was if Mr. l srvivcl him, and 1) it was the undisputed intention of j.ai in"! thi; J) t) ',pra ..hould prevail, - and the trial conn should have M.. r . f'miPd iiM."' the rulc:s anc-n- t summary judgment n m . P: i vi I ,i ot; .. lVefutCiUv b'lown that ho Cim . . . - j i i 1 : . S-- c. 'r-:.'sm:- . cr-n.te- d, y 1 ; ; t . , - . . : Der.-::vc- i in-n.t- . n,j r- ) witliin r' - i.iv. .n'. d in i J nb?vt. Thrc iu tiie inoiapt lecoud appeal, since l cite lua-H'f-v. Lovfland and teems to ayirce vith my disotit in the first Dfchix: '..is- wil:. ic:?pr:ct tn the procedure where the facts arc 'incontroverted. I disstft iIuMtfltwm, however, since I dissented in Bracgger v. Loveland and riliio .jr. i- f - ( i 7ai; j'ci liie i- yarni-ihmev'- t'nsr uiiu opi.Ioi. ; r.ist-- s In the former appeal we said that uu ostcn.-ilil- e jivif tenancy relationship would be presumed to be just that unless tlu.nt onU bo reformed to how some nther rf Intionship or because of frrmrf. miit-','..-- , incapacity, or other infirmity which world prevent the nfort ..inri.: of ih Since there 'was no proof given at the trial which tended tn show the ostensible relation-iihi- p of joint tenancy did not exist, it must lie held that Mr. ,1 s.rz. Painter 'were joint tenants, each having a one half interest in and to the funds. We think t.he following cases state the better rule of law as it applies to the instant matter: - a-r- ovi 1 . rijji-cfne!;!- tl-- In Dover Trust Co. v. Br00k,, 160 A. 890 (N. J. Chancery 1932). in:nt.io-n- . . . The service of the writ of attachment and the under execution worked a severance of Mi. and Mrs. levy Brooks' Continued on pnpeft t |