Keller v. Porchey

• Court: Missouri Court of Appeals
• Writing for the Court: KELLY; GUNN, P. J., and WILLIAM H. CRANDALL, Jr.
• Citation: Keller v. Porchey, 560 S.W.2d 257 (Mo. App. 1977)
• Decision Date: 08 November 1977
• Docket Number: No. 37507,37507
• Parties: Floyd P. KELLER, Sr., Plaintiff-Respondent, v. Winifred Laura PORCHEY et al., Defendants-Appellants. . Louis District, Division Three

Page 257

560 S.W.2d 257

Floyd P. KELLER, Sr., Plaintiff-Respondent, v. Winifred Laura PORCHEY et al., Defendants-Appellants.

No. 37507.

Missouri Court of Appeals, St. Louis District, Division Three.

Nov. 8, 1977.

Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

Application to Transfer Denied Feb. 8, 1978.

Benson Cytron, House Springs, for defendant-appellants.

Jack C. Stewart, Dennis H. Tesreau, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for plaintiff-respondent.

KELLY, Judge.

In this appeal from the judgment of the Circuit Court of Jefferson County quieting title to a parcel of real estate and the improvements thereon in plaintiff-respondent, Floyd P. Keller, Jr., and denying the counter-claim of defendant-appellant, Winifred Laura Porchey, ¹ for partition, the single point raised by the defendant-appellant is whether the trial court erred in finding for the plaintiff-respondent on the evidence adduced. For reasons hereinafter stated we conclude that the judgment must be reversed and the cause remanded for a new trial.

The crucial issue, as we view it from the pleadings and the record, is the nature of the tenancy enjoyed by the plaintiff (as Mr. Keller shall hereinafter be identified) and the defendant (as Mrs. Porchey shall hereinafter be identified) in a "joint checking account" they maintained between the years 1961 and 1972, and the utter lack of evidence whether it constituted a statutory joint account with right of survivorship pursuant to the provisions of § 362.470 V.A.M.S., or what was the intent of the parties with respect to the tenancy created by the establishment of the account at the time said "joint checking account" was opened. While both parties, throughout the course of the trial referred to the checking account into which both deposited their respective earnings and from which each made withdrawals for housekeeping expenses, rental payments, etc., neither produced any evidence at trial from which the trial court could reasonably deduce the nature of the tenancy in the said "joint checking account."

We believe that the legal rights and responsibilities of these parties with respect to this "joint checking account" must be settled prior to resolving their conflicting claims to the subject property. It is conceded by the parties that although title to the property was deeded to them as husband and wife and as tenants by the entirety, by operation of law, due to the fact they had never legalized their status as husband and wife by participating in a marriage ceremony, they took title as tenants in common. Anderson v. Stacker, 317 S.W.2d 417, 421(3) (Mo.1958). Plaintiff pleaded and tried his case on the theory that he furnished all of the consideration for the purchase of the property. Defendant alleged and tried her counter-claim on the theory that she took as a tenant in common and was therefore entitled to a one-half interest...