Hindman v. COMMUNITY NAT. BK. OF PONTIAC

14 Mich. App. 746 (1968) 165 N.W.2d 894

HINDMAN
v.
COMMUNITY NATIONAL BANK OF PONTIAC

Docket No. 5,350.

Michigan Court of Appeals.

Decided December 19, 1968. Rehearing granted January 29, 1969.

Hempstead, McGrath, Cook & Kurzman, for plaintiff.

Patterson & Patterson, Barrett, Whitfield, Manikoff and White, for defendant.

Rehearing granted January 29, 1969., for limited purpose of correcting erroneous dates.

MILLER, J.

Clara Hindman opened a joint savings account with plaintiff at defendant bank which account was payable to either or both or the survivor. Testimony shows that Clara was the only depositor.

A loan was made to Daniel Jubelt on June 26, 1964. A note in the amount of $3,164.76 was given by the borrower. Clara acted as cosigner on this note. The note stated it was "secured by savings account". Clara Hindman also gave an "hypothecation certificate" stating she sold, conveyed and assigned her right, title and interest to savings account no. 138034, the joint account, and upon full payment of the promissory note the collateral would be returned. A savings withdrawal slip in the amount of the loan plus interest was delivered to the bank. The account slip was tagged with a notation that the balance was not to fall below the balance outstanding on the loan.

Clara Hindman died June 28, 1964. Payments on the loan were made by the maker through December, 1964. Two withdrawals in favor of itself were made in March, 1965, by the bank in satisfaction of the balance due upon default of the maker of the note.

Plaintiff is the surviving joint tenant. Plaintiff withdrew funds from the account in September of 1964 and now sues for the balance remaining including that which had been withdrawn in March by the bank.

Plaintiff was awarded judgment in the trial court in the amount of $2,461.48 plus costs of $35.50 from which defendant appeals.

The statute^[*] governing joint bank accounts provides in part:

"The making of the deposit in such form shall * * * be prima facie evidence * * * of the intention of such depositors to vest title to such deposit * * * in such survivor or survivors."

The statutory presumption may be rebutted by competent evidence. Jacques v. Jacques (1958), 352 Mich. 127. One method of rebutting the presumption would be by written or oral notice by the donor to the bank. Manufacturers National Bank v. Schirmer (1942), 303 Mich. 598, 603; Esling v. City National Bank and Trust Company (1936), 278 Mich. 571. See also Richard Wellman, Joint and Survivor Account in Michigan — Progress Through Confusion, 63 Mich. L Rev 629, 643 (1966).

The documents executed in connection with the loan are at complete odds with an intention to leave the entire balance at her death to the plaintiff. This constituted a condition subsequent. Plaintiff's theory also ignores the debtor-creditor relationship created by a bank deposit. Owosso Masonic Temple Association v. State Savings Bank (1935), 273 Mich. 682.

The lower court erred. Plaintiff should recover only such amount as remains in the account after the obligation to the bank is satisfied.

T.G. KAVANAGH, P.J., and QUINN, J., concurred.

NOTES

[*] CL 1948, § 487.703 (Stat Ann 1957 Rev § 23.303).