Conlon v Self, 162 NC App 180 (03-247) 01/06/2004

Appeal by Defendants from order entered 21 August 2002 by Judge Forrest Donald Bridges, Superior Court, Cleveland County. Heard in the Court of Appeals 2 December 2003.

Teddy & Meekins, PLLC, by Ralph W. Meekins, for plaintiff.

Deaton & Biggers, PLLC, by W. Robinson Deaton, Jr. and Brian D. Gulden, for defendants.

    WYNN, Judge.

    This appeal arises from the trial court's determination that a husband's transfer, as an attorney-in-fact, of his wife's interest in tenancy by entirety property to himself constituted an improper gift to an attorney-in-fact in violation of N.C. Gen. Stat. § 32A-14.1 (2002). After careful review, we affirm the trial court's judgment.
    The underlying facts show that in May 1990, Coleman F. Self and Francis S. Kuykendall (now “Francis S. Self”) signed apremarital agreement whereby they agreed that (1) all property owned individually prior to their marriage shall remain separate property, (2) all property acquired after marriage by individual parties shall remain separate property, and (3) all property acquired after the marriage shall not be subject to equitable distribution, and (4) each party would not have any rights or interests in the separate property of the other. At the time of the agreement made before the parties married, Coleman Self owned and resided at property located at 121 Canterbury Road in Cleveland County. However, after their marriage, Coleman Self transferred this property to himself and Francis Self as tenants by the entireties on 29 September 1990. Thereafter, the couple purchased property, as tenants by the entireties, located at 205 Birdie Lane, Shelby, North Carolina, and sold the property located at Canterbury Road.
    In March 1995, Francis Self executed a power-of-attorney which appointed Coleman Self as her true and lawful attorney-in-fact. The power-of-attorney was not registered with the Register of Deeds until 29 December 1995. However, on 30 January 1996, Francis Self executed another power-of-attorney, naming Peggy Conlon, her daughter, as her attorney-in-fact. This power-of-attorney was registered on 8 February 1996.
    In September 1997, Coleman Self had an attorney prepare a deed conveying the Birdie Lane property, owned by Coleman and Francis Self, to Coleman Self individually and solely. However, upon being presented with the deed conveying the property to Coleman Self,individually, Francis Self refused to sign the deed and made it clear that she did not wish to transfer the property to Coleman Self, individually.
    Nevertheless, Coleman Self asked another attorney to prepare a deed conveying the Birdie Lane property to himself. On 2 June 1999, Coleman Self signed the deed as “Frances S. Kuykendall, by Coleman Franklin Self, POA.” Although the deed stated the grantee received the sum of Ten ($10.00) Dollars and other good and valuable consideration, the parties have stipulated no money was paid by Coleman Self to Francis Self in exchange for the property.
Coleman Self died a few months later. At the time of his death, he was still married to Francis Self.
    On 24 August 2001, Peggy Conlon as Attorney-in-Fact for Francis Self filed a complaint and notice of lis pendens against Defendants, Executors of the Estate of Coleman Franklin Self, seeking to have the 2 June 1999 deed set aside. On 21 August 2002, the trial court entered summary judgment in favor of Plaintiff and set aside the 2 June 1999 deed. Defendants appeal.
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    On appeal Defendants contend the trial court erred by holding that the 1 June 1999 deed executed by Coleman Self as attorney-in- fact conveying the property to himself, individually, constituted an improper gift to an attorney-in-fact in violation of N.C. Gen. Stat. § 32A-14.1. Specifically, they contend (1) the power of attorney authorized Coleman Self to convey the Birdie Lane property to himself and, (2) the Birdie Lane property was never intended tobe marital property, but rather Coleman Self's separate property as indicated by the premarital agreement. We uphold the trial court's grant of summary judgment.
    The record shows that on 29 December 1995, Coleman Self registered with the Register of Deeds a power of attorney signed by Frances Self before a notary public on 30 March 1995. In this power of attorney, Coleman Self was made Frances Self's attorney- in-fact with “full power to act in my name, place and stead in any way which I myself could do if I were personally present with respect to the following matters as each of them is defined in Chapter 32B of the North Carolina General Statutes, to the extent that I am permitted by law to act through an agent....” In Whitford v. Gaskill, 345 N.C. 475, 476-78, 480 S.E.2d 690, 691-92 (1997), our Supreme Court stated that this language in a power of attorney generally follows the short form power of attorney set forth in N.C. Gen. Stat. § 32A-1 and constitutes a broad general power of attorney. In determining whether a broad general power of attorney authorizes the attorney-in-fact to make a gift of the principal's real property, our Supreme Court held in Whitford that “an attorney-in-fact acting pursuant to a broad general power of attorney lacks the authority to make a gift of the principal's real property unless that power is expressly conferred. Accordingly, the power-of-attorney set forth in N.C.G.S. § 32A-1 and the power granted attorneys-in-fact by N.C.G.S. § 32A-2(1), standing alone, do not authorize an attorney-in-fact to make gifts of the principal's real property.” Id. The basic premise underlying thisrule is “that an attorney-in-fact is presumed to act in the best interests of the principal. Since the power to make a gift of the principal's property is potentially hazardous or adverse to the principal's interests, such power will not be lightly inferred from broad grants of power contained in a general power of attorney.” Id.
    In this case, Coleman Self's power-of-attorney did not authorize him to make a gift of Francis Self's real property. According to the 1 June 1999 deed, Frances Self conveyed her interest in the Birdie Lane property to Coleman Self “for and in consideration of the sum of Ten ($10.00) Dollars and other good and valuable considerations....” However, the parties stipulate that $10.00 was never exchanged and although the deed states for other good and valuable considerations, Defendants have not demonstrated any consideration was given for the conveyance. Thus, the deed signed by Coleman Self as Frances Self's attorney-in-fact constituted an unauthorized gift of real property.
    Defendants also contend the Birdie Lane property was never intended to be marital property; but rather, Coleman Self's separate property. According to the premarital agreement, any property acquired after marriage with separate funds would remain the separate property of the person acquiring the property. According to Defendants' affidavits, the Birdie Lane property was purchased with Coleman Self's separate property--cash money. Therefore, Defendants contend the Birdie Lane property was Coleman Self's separate property. However, we decline to address thisissue because it is not properly before us.
    Plaintiff initiated a complaint on 24 August 2001 to set aside the June 1999 deed executed by Coleman Self and sought a transfer of the property back to Francis Self as the true owner. In its answer, Defendants asserted accord and satisfaction as a defense: “The parties, or their predecessors in interest, reached an accord and satisfaction or resolution of all property and asset issues involved in their marriage when they signed that certain premarital agreement dated April 23, 1990....” However, Defendants allegations are not properly raised as an accord and satisfaction; indeed, “an 'accord' is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from what he is, or considered himself entitled to; and a 'satisfaction' is the execution or performance, of such agreement.” Allgood v. Wilmington Sav. & Trust Co., 242 N.C. 506, 515, 88 S.E.2d 825, 830-31 (1955). At the time Coleman and Francis Self executed the premarital agreement, a dispute as to ownership of land did not exist. As Defendants did not bring this separate action by counterclaim, we decline to address the effect of the premarital agreement upon tenancy by the entirety property.
    Affirmed.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

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