Cabarrus Bank & Trust Co. v. Chandler

• Decision Date: 06 September 1983
• Docket Number: No. 8220DC960,8220DC960
• Citation: 63 N.C.App. 724,306 S.E.2d 184
• Court: North Carolina Court of Appeals
• Parties: CABARRUS BANK & TRUST COMPANY v. Gerald R. CHANDLER.

Page 184

306 S.E.2d 184

63 N.C.App. 724

CABARRUS BANK & TRUST COMPANY v. Gerald R. CHANDLER.

No. 8220DC960.

Court of Appeals of North Carolina.

Sept. 6, 1983.

Hartsell, Hartsell & Mills, P.A. by W. Erwin Spainhour, Concord, for plaintiff-appellee.

Grant & Hastings, P.A. by Randell F. Hastings, Concord, for defendant-appellant.

VAUGHN, Judge.

The sole issue on appeal is whether the lack of registration of Burris' power of attorney invalidates his authority to sign his wife's name on the promissory note to plaintiff. If such signature was unauthorized, defendant contends that Melanie Burris is not liable on the debt, and that defendant, therefore, as guarantor of a joint debt, is not liable either. We affirm the trial court order granting plaintiff summary judgment. We hold that Burris had authority to sign his wife's name on the note, and that, therefore, defendant is liable for the full amount of the debt.

A power of attorney is an instrument in writing granting power in an agent to transact business for his principal. NCNB v. Hammond, 298 N.C. 703, 260 S.E.2d 617 (1979); Howard v. Boyce, 266 N.C. 572, 146 S.E.2d 828 (1966). Melanie Burris executed a written power of attorney in 1979 which gave her husband authority to sign her name on the June 6, 1980 promissory note to plaintiff.

Although G.S. 47-115.1(d) states that "no power of attorney executed pursuant to the provisions of this section shall be valid but from the time of registration thereof in the office of the register of deeds ..." and although Melanie Burris' power of attorney specifically incorporated G.S. 47-115.1, we interpret the recording provision to apply only in cases where a competent principal later becomes incompetent. If the principal is competent, as was Melanie Burris, then a power of attorney, if in writing, is effective without the necessity of recordation. NCNB v. Hammond, supra; see O'Grady v. First Union National Bank, 35 N.C.App. 315, 241 S.E.2d 375, reversed, 296 N.C. 212, 250 S.E.2d 587 (1978). In Hammond, the Supreme Court stated: "G.S. 47-115.1 codifies a particular subset of powers of attorney--those powers of attorney which may be continued in effect in the event of incapacity or mental incompetence of the principal ..." 298 N.C. at 713, 260 S.E.2d at 624, 625. The purpose of G.S. 47-115.1 is to render a power of attorney, executed by a competent principal, effective, notwithstanding the later incompetence of the principal. See Act of May 3, 1961, ch. 341, 1961 N.C. laws 501.

G.S. 47-115 states: "Any instrument, in writing, executed by an attorney-in-fact, shall be good and valid as the instrument...