CIACCIO, Judge.
In this case, plaintiffs, Beverly Taylor Guste, Roy F. Guste, Dorothy Schutten, and William J. Guste, Jr., appeal the trial court's judgment that dismissed their suit by the granting of an exception of prescription filed by defendant, Hibernia National Bank in New Orleans ("Hibernia" or "the Bank"). Hibernia contends that the exception of prescription was properly granted and further that the trial court erred in failing to address their exception of no cause of action that was filed at the trial level and reurged in this court. For the reasons stated herein, we affirm the judgment of the trial court dismissing plaintiffs' suit, with prejudice, because we find that Hibernia's exception of no cause of action should be maintained.
FACTS
The relevant facts are not disputed. On August 25, 1983, the plaintiffs, by act of credit sale, sold a tract of land to Francois Spoerry International ("FSI"), which FSI intended to develop. The tract contained 295.5 acres and was divided into three parcels, Parcel 1, Parcel 2, and Parcel 3. The total sales price was $4,753,000.00 of which $1,308,460.00 was paid in cash with the balance of the purchase price, $3,444,540.00 being represented by two promissory notes both of which were secured by a vendor's lien and mortgage on parcels 2 and 3. The first note was for $300,000.00, payable 60 days from date and personally endorsed by Francois Spoerry. The second note was for $3,144,540.00, payable in two installments with the first installment of $1,769,306.00 due 18 months from date. Parcel 1 was released from the mortgage in consideration of the cash payment. Parcels 2 and 3 were to be released upon the payment of the installments, first Parcel 2 and then, Parcel 3.
Contemporaneously with the execution of the Credit Sale, FSI executed two Dations en Paiement. (Attached hereto as Appendix "A"). Dation No. 1 transferred Parcels 2 and 3 back to plaintiffs in the event that FSI defaulted on payment of the first installment. Likewise, Dation No. 2 transferred Parcel 3 back to plaintiffs in the event that FSI defaulted on the second installment.
At the same time that the Credit Sale and Dations were executed, plaintiffs and FSI entered into an Escrow Agreement with Hibernia. (Attached hereto as Appendix "B"). The Escrow Agreement specified that pursuant to the Credit Sale between plaintiffs and FSI, plaintiffs and FSI deposited the fully-executed Dations with Hibernia for safekeeping. The Escrow Agreement delineated the circumstances under which the Dations would be released by Hibernia, including the release of the properties from the mortgage which secured the promissory note. The Agreement further stated that the Dations would be released under the following circumstances:
II
Solely at the option of Guste, in the event that on or after nineteen months from the date hereof, the Bank receives (i) an affidavit stating that Guste or the holder of that certain promissory note in the sum of $3,144,540.00, drawn by FSI, dated of even date ("said note") had not received the first installment due on the note ($1,769,306.00), plus the interest which had accrued on said note and (ii) evidence from Guste or the holder of said note that Guste or the holder had notified FSI thirty days previously that it was in default with regard to that installment payment, the Bank shall deliver Dation No. 1 to Guste or the holder of said note.
III
Solely at the option of Guste, in the event that on or after thirty-seven months from the date hereof the Bank receives (i) an affidavit stating that Guste or the holder of said note had not received the second installment on said note ($1,375,234.00), plus the interest which had accrued on said note and (ii) evidence from Guste or the holder of said note that Guste or the holder had notified FSI thirty days previously that it was in default with regard to that installment payment, the Bank shall deliver Dation No. 2 to Guste or the holder of said note.
Finally, the Escrow Agreement contained the following provision with regard to the Bank's liability:
VIII
Guste and FSI hereby agree to, and hereby do, relieve and release the Bank of and from any and all liability to them, their heirs, successors or assigns, provided the Bank shall strictly execute the duties set forth herein. In the event the Bank undertakes or refrains from any action not specifically provided for in this Agreement, Bank shall be relieved and released from any liability on account thereof provided that such act or omission be performed or withheld from being performed in good faith and in the exercise of a degree of care and prudence which is reasonable under the circumstances.
On June 5, 1984, Hibernia and FSI entered into a Loan Agreement for the financing of the development of the property that caused Parcels 2 and 3 to be encumbered with collateral mortgages in the amount of $20,000,000 on each parcel. These mortgages were recorded in St. Tammany Parish where the property was located, taking a second position behind the vendor's lien and mortgage created by the Credit Sale. Plaintiffs allege that this act constituted a breach of the Escrow Agreement by Hibernia, making it liable for damages.
The first note of $300,000.00 was apparently timely paid. However, on February 25, 1985, FSI defaulted on the payment of the installment of $1,769,306.00 that was due under the Credit Sale. When FSI failed to cure this default after notice, plaintiffs demanded that Hibernia release Dation No. 1 to them pursuant to the terms of the Escrow Agreement. Plaintiffs also demanded that Hibernia release its collateral mortgages on the parcels. Although Hibernia released the Dations to plaintiffs, Hibernia subsequently informed plaintiffs that it would not release the collateral mortgages on Parcels 2 and 3.
Plaintiffs filed a lawsuit to foreclose on their vendor's lien and mortgage on Parcels 2 and 3. On March 18, 1987, plaintiffs bid in the parcels at a sheriff's sale, thereby extinguishing Hibernia's second mortgages.
On April 2, 1993, plaintiffs brought the instant lawsuit against Hibernia, asserting a number of causes of action: bad faith breach of the Escrow Agreement, bad faith breach of the Credit Sale, breach of contractual fiduciary duty, fraud, breach of duty as a depositary under La.C.C. art. 2937, and tortious interference with plaintiffs' contract with FSI. In response, Hibernia filed exceptions of no cause of action and prescription.
After a hearing on the matter, the trial court concluded that plaintiffs' petition "sounded in tort," and granted Hibernia's exception of prescription, applying the one-year liberative prescriptive period applicable to delictual actions. The court subsequently vacated its order and held a second hearing, after which the trial court again maintained Hibernia's exception of prescription and dismissed plaintiffs' suit in its entirety. The trial court did not specifically rule on Hibernia's exception of no cause of action.
From this judgment, plaintiffs appeal, contending that the trial court erred in granting Hibernia's exception of prescription. Hibernia seeks affirmation of the judgment and further argues that the trial court erred in failing to maintain its exception of no cause of action. Because we find merit in appellee's exception of no cause of action, we find it unnecessary to reach the merits of the trial court's judgment maintaining Hibernia's exception of prescription.
DISCUSSION The Exception of No Cause of Action
Hibernia filed an exception of no cause of action in the trial court, which was later reurged in brief and in oral argument before this Court. Although Hibernia did not immediately seek review of the trial court's failure to rule on their exception (presumably because the court ruled in its favor on the exception of prescription), the exception is properly before this court in this appeal. La.C.C.P. arts. 927 and 2163. See Phillips v. State, through Dept. of Transp. Dev., 400 So.2d 1091 (La.App. 1st Cir. 1981), writ not considered, 403 So.2d 70 (La. 1981), writ denied, 401 So.2d 1195 (La. 1981).
The peremptory exception of no cause of action tests the legal sufficiency of the petition and is triable on the face of the papers; for the purpose of determining the issues raised by this exception, the well-pleaded facts in the petition and any annexed documents must be accepted as true. La.C.C.P. art. 927; Kuebler v. Martin, 578 So.2d 113, 114 (La. 1991).
By this exception, Hibernia contends that the Dations executed in this case are against public policy and are null and void, and therefore plaintiffs cannot maintain a cause of action against them for damage thereto. We agree.
Plaintiffs' cause of action against Hibernia rests solely upon the validity of the two Dations executed concurrently with the Act of Credit Sale. Plaintiffs allege in paragraph 15 of their petition that Hibernia's acceptance of the collateral mortgages " resulted in the commercial destruction of the value of the Dations which Hibernia had agreed to protect." Paragraph 15 further alleged, "[t]he mortgages did effectively prevent plaintiffs from recovering Parcels 2 and 3, under the terms of the Dations, the Escrow Agreement and the Credit Sale to FSI."
If the Dations were null and void ab initio as claimed by Hibernia, they would be unenforceable and valueless. If they were worthless from their inception, no damages could flow from any actions of Hibernia to cause the " commercial destruction of the value of the Dations." All of plaintiffs' claims, including breach of fiduciary duty, bad faith, breach of contract, breach of duties as a depositary, and willful creation of a conflict of interest presuppose the validity of the Dations. Accordingly, the nullity of the Dations, as is urged by Hibernia's exception of no cause of action, would mandate dismissal of plaintiffs' petition.
Our review of the Credit Sale and Dations contained in the record show the following language. The Credit Sale provided:
Contemporaneously with the execution of this act of sale, Buyer shall execute two dations en paiement ("dations"), the first of which shall transfer title to Parcels 2 and 3 to the Sellers and the second of which shall transfer title to Parcel 3 to the Sellers. While any indebtedness on the principal and accrued interest remains outstanding and unpaid, the dations shall be held by Hibernia National Bank in New Orleans as "Escrow Agent," pursuant to the Escrow Agreement attached hereto as "Exhibit B". Notwithstanding anything contained herein to the contrary, if within 30 days after having been notified by Sellers that it is in default with regard to the payments due on the second promissory note, Buyer does not pay the amount(s) due, the Escrow Agent shall release the dation(s) according to the terms of the Escrow Agreement. Upon receipt by Sellers of such dation(s), Buyer shall be relieved of its obligation to pay the balance due to Sellers on the second promissory note. The properties returned will be in the same state of merchantability as they were when first conveyed to the Buyer.
The Dations were by Notarial Acts, dated the same date as the Credit Sales, and provided:
(1) Francois Spoerry International, Inc. had executed a mortgage note in the amount of $3,144,540.00 that is " due and payable."
(2) That FSI "wishing to be released from the said indebtedness due and owing" under the provisions of Arts. 2655 to 2659 of the Civil Code, makes unto Guste a dation en paiement "by hereby transferring, conveying, delivering, granting, assigning and setting over unto [the Gustes] here present accepting, all and singular, the property described on Exhibit A."
(3) Guste accepts the transfer in full payment of the note.
(4) Guste has delivered the note to the Notary as fully paid, cancelled and acquitted, and declared that the Note was paid in full.
(5) The Notary cancelled the signature and notarial paraph on the note.
The Dations were signed by all parties and the Notary and two witnesses on August 25, 1983. Although we find no basis to conclude that the declarations were made with any intent to deceive, as of August 25, 1983, all of the crucial declarations contained in the Dations were false.
A Dation en Paiement may be judicially declared to be null and void if it is confected and executed in violation of a prohibitory law or in violation of the public policy of this state. In Miller v. Miller, 234 La. 883, 102 So.2d 52 (1957), in declaring a dation between husband and wife null and void, the Supreme Court stated:
Upon examination of the instrument of August 21, 1942, we find that it was a prohibited contract on its face at the time it was executed. If it was a prohibited contract at the time it was executed, no action or inaction on the part of the parties could afterwards render it valid.
La.C.C. art. 2030 provides:
A contract is absolutely null when it violates a rule of public order, as when the object of a contract is null or immoral. A contract that is absolutely null may not be confirmed.
Absolute nullities may be invoked by any person or may be declared by the court on its own initiative.
For the following reasons we hold that the Dations were prohibited contracts at the time of their execution and were absolute nullities.
PUBLIC POLICY
La.C.C. Art. 3279. Rights created by mortgage
Mortgage gives the mortgagee, upon failure of the obligor to perform the obligation that the mortgage secures, the right to cause the property to be seized and sold in the manner provided by law and to have the proceeds applied toward the satisfaction of the obligation in preference to claims of others.
Paragraph (b) of the official comments states, in part:
The requirement that the seizure and sale must be "in the manner provided by law" emphasizes the long tradition in Louisiana of requiring recourse to judicial procedures and generally rejecting private sale or self-help as a method of execution.
Plaintiffs judicially acknowledge in their petition that the Dations had several purposes or causes:
. . . first, to prevent the imposition of junior liens on the property; secondly, to facilitate the orderly recovery by plaintiffs of the unreleased portion or portions of the 300 acre tract in the event of a default by FSI on either of the installments; thirdly, to relieve plaintiffs of the delays, costs, and fees associated with a mortgage foreclosure; and finally, to enable plaintiffs to receive the benefit of all enhancement in value of the properties, resulting from, among other things, the development of Parcel 1, and the infrastructure connected therewith, in the event of a default in connection with the payments for either Parcel 2, Parcel 3 or both.
By their own admission, plaintiffs were attempting to create by contract with their debtor a new method of enforcing their mortgage in a manner not provided by law. By the use of the Dations the parties were incorporating in the mortgage a complete waiver of the entire foreclosure procedure thus avoiding the necessity of a judicial sale.
A mortgage may be established only by legislation. La.C.C. art. 3281. The mortgagee is given the right to seize and sell the property and to apply the proceeds to the satisfaction of his obligation in preference to the claim of others. La.C.C. art. 3279.
In addition to a foreclosure action via ordinaria, our laws providing for executory process give to a mortgagee a speedy procedure for enforcing collection of a mortgage note. La.C.C.P. art. 2631 provides:
Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law.
Citation is not necessary and the assertion of defenses and appeal rights are severely restricted. La.C.C.P. arts. 2638 thru 2642. The proceeds of the sheriff's sale are used to pay the seizing creditor and any surplus remaining is paid to the debtor. La.C.C.P. art. 2373.
Other than a foreclosure action via ordinaria, the above cited articles of the Code of Civil Procedure are the exclusive methods provided by law for the enforcement of a mortgage. Any expansion of these procedural remedies lies within the exclusive power of the Legislature. Accordingly, it is against the public policy of this state for mortgagor and mortgagee to incorporate in the mortgage instrument any procedure designed to completely bypass and waive the laws regarding foreclosure so that the mortgagor regains title merely upon default of payment without the necessity of a seizure and judicial sale and with the mortgagor forfeiting any claim on the surplus remaining because of prior payment or because of enhancement of the value of the mortgaged property. For the foregoing reasons the Dations executed in connection with the credit sale violate that public policy and are absolute nullities. See La.C.C. art. 2030.
VIOLATION OF LSA-R.S. 9:3590
LSA-R.S. 9:3590 provides:
Except for the purposes of executory process, confessions of judgment, prior to the maturity of the obligation sued on, are hereby prohibited.
La.C.C.P. art. 2632 provides:
An act evidencing a mortgage or privilege imports a confession of judgment when the obligor therein acknowledges the obligation secured thereby, whether then existing or to arise thereafter, and confesses judgment thereon if the obligation is not paid at maturity.
Although the Dations in this case do not actually contain the words "confession of judgment," FSI clearly states in the Dations that the debt owed to the Gustes was "due and payable." The Dations were executed by notarial act, and contained a statement by the obligor acknowledging the default of an obligation that was not yet due. As admitted by plaintiffs, the Dations were executed in an attempt to avoid the necessity of resorting to judicial process, allowing the Gustes to regain title and ownership of the property automatically on default.
In Phillips v. Bryan, 172 La. 269, 272, 134 So. 88, 89 (1931), the Louisiana Supreme Court stated:
It is plain, therefore, that the statement in the instrument, that the debt was due, was made merely to circumvent the prohibitory law against waiving citation or confessing judgment before the maturity of the obligation to be sued on. Article 11 of the Civil Code declares that individuals cannot by consent derogate from the force of laws enacted in the interest of public policy, and article 12 declares that whatever is done in contravention of a prohibitory law is void.
Articles 11 and 12 of the Civil Code were combined into article 7 by an amendment in 1987. La.C.C. art. 7 provides as follows:
Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.
By the execution of the Dations in this case, the parties have attempted to circumvent the prohibitory law against confessing judgment prior to the maturity of the obligation. Accordingly, the Dations are absolute nullities. UNAUTHORIZED USE OF A DATION AS A SECURITY DEVICE
The public policy of this State does not allow a creditor, as a condition of the loan, to require a debtor to execute an instrument by authentic act (a dation) that retransfers title and ownership to the creditor prior to the maturity or default of the debt so that the mere recordation of the instrument perfects the title of the creditor and causes the debtor to forfeit any claims of ownership or interest in sums previously paid on the purchase price. Accordingly, we hold that the use of a dation as a security device in connection with an act of mortgage is prohibited by the public policy of this state causing the Dations to be null and void from the moment of their execution, for the following additional reasons.
The plaintiffs attempted to secure the payment of the balance of the purchase price by using two security devices: (1) a vendor's lien and mortgage and (2) Dations en paiement. The vendor's lien and mortgage are specifically authorized by La.C.C. arts. 3249 and 3279. However, the use of the Dations as a security device finds no support in Louisiana law.
The articles of the Civil Code which contain the provisions on the Dation en Paiement, or giving in payment, Chapter 16, Articles 2655 through 2659, are contained in Title VII of Book III of the Code which regulates the Contract of Sale.
A dation en paiement, or the giving in payment, is defined in article 2655 as it was worded in 1983 as:
The giving in payment is an act by which a debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due.
Although this article was reworded by a 1993 amendment, the amendment did not change the law. The instrument of dation is subject to all of the rules of the contract of sale, except that under the Civil Code mere consent of the parties does not perfect the giving in payment. La.C.C. arts. 2456, 2659. Rather, delivery of the thing is necessary to perfect the giving in payment. La.C.C. arts. 2656, 2657. In the case of immovables, delivery is always considered as accompanying the public act transferring them, whether that act be a sale or dation en paiement. Miller v. Miller, 234 La. 883, 102 So.2d 52, 55 (1957). Civil Code article 2477 provides in part: "[d]elivery of an immovable is deemed to take place upon execution of the writing that transfers its ownership."
Dations are listed in the Civil Code in the section on sales, and are not included among the approved security devices defined by the codal articles. Security devices recognized in the Civil Code consist only of suretyship, pledge, conventional mortgages, legal mortgages, judicial mortgages, privileges and statutory liens. Security devices protect a creditor's privilege against property held as security. Security devices do not transfer title or ownership to the creditor — they only give to the creditor a preference for payment of his claim. Dations are not designated as a security device because a Dation transfers title to the creditor as if it were a sale.
By their own admission, plaintiffs, through the execution of the dations, were attempting to recover title to Parcels 2 and 3 in the event the buyer defaulted, without the delay and expense of foreclosure proceedings. This Court has previously expressed displeasure at similar well-intentioned attempts to bypass the provisions of Louisiana law governing security devices. In DeSalvo v. Finance Funds Group, Inc., 252 So.2d 498, 501 (La.App. 4th Cir. 1970), the Court stated:
We believe further balance would be accomplished by holding, where a Louisiana lender spurns legitimate Louisiana security devices — and adopts a device which might, contrary to Louisiana law not only of mortgage but also of antichresis (see C.C. art. 3179), allow the lender to become the owner on default of payment — that the Louisiana lender having rejected security has no security.
In the present case, we find that plaintiffs sought to create by the execution of these Dations a security device which would bypass Louisiana law that prohibits a secured lender-mortgagee from becoming the owner of the security upon default of the debtor without resort to judicial process. We find no law that permits a dation to be used as a security device.
If the Dations were to be recognized as valid the parties would have entered into a transaction that has always been prohibited by Louisiana law — a common law conditional sale. It is a well-established principle in Louisiana jurisprudence that the concept of a "conditional sale" whereby the seller retains ownership until the price is paid is prohibited under Louisiana law. Barber Asphalt Paving Co. v. St. Louis Cypress Co., 121 La. 152, 46 So. 193 (1908); Parnell v. Baham, 228 So.2d 53 (La.App. 4th Cir. 1969), writ denied 255 La. 242, 230 So.2d 92 (1970).
The only exception is found in La.R.S. 9:2941-2947 — "Bond for Deed."
As between the Gustes and FSI, execution of the Dations gave the Gustes title to the property. Default gave the Gustes the absolute right to record the Dations and to cause FSI to forfeit any claims of ownership or reimbursement. Upon notification of default, the escrow agent had no discretion to retain possession of the Dations and FSI had no right to impede physical delivery of the documents. Although the parties may have intended to use the escrow agreement to give some degree of protection to the mortgagor, the deposit did not prevent the Dations from transferring title back to the Gustes since delivery was deemed to take place upon execution of the transfer. La.C.C. art. 2477. In fact, plaintiffs alleged in Article 16 of their petition: "[a]s Hibernia and FSI well knew, the Dations were a reconveyance of Parcels 2 and 3 to Plaintiffs." Assuming plaintiffs' allegations to be correct, the Gustes would have retained title in their names until FSI paid the balance of the purchase price — a prohibited conditional sale.
Since the Dations are absolute nullities for the reasons stated herein, and the Escrow Agreement is, by definition an accessory agreement to the Dations, we hold that the Escrow Agreement given in furtherance of the Dations is likewise an absolute nullity. Accordingly, plaintiffs have no cause of action against Hibernia for any alleged breach thereof.
CONCLUSION
For the reasons stated, we conclude that the Dations, as executed in the present case, were prohibited transactions under Louisiana law and are absolute nullities. Under these circumstances, plaintiffs have no cause of action against Hibernia for any damage resulting from the unenforceability of the Dations or any breach of the Escrow Agreement. For the reasons stated herein, we hold that the exception of no cause of action brought by Hibernia National Bank should be maintained. Accordingly, we affirm the judgment of the trial court which dismisses plaintiffs' suit against Hibernia with prejudice.
AFFIRMED.
PLOTKIN, J., dissents with reasons.
APPENDIX A
Dation 1
UNITED STATES OF AMERICA
STATE OF LOUISIANA
PARISH OF ORLEANS
ACT OF DATION EN PAIMENT
BY: FRANCOIS SPOERRY INTERNATIONAL, INC. a Louisiana Corporation
TO: ROY F. GUSTE, BEVERLY TAYLOR GUSTE, DOROTHY SCHUTTEN GUSTE and WILLIAM J. GUSTE, JR.
BE IT KNOWN, that on this 25th day of August, 1983.
BEFORE ME, the undersigned, a Notary Public, duly commissioned and qualified, in and for the Parish and State aforesaid and in the presence of the witnesses hereinafter named and undersigned:
PERSONALLY CAME AND APPEARED:
FRANCOIS SPOERRY INTERNATIONAL, INC., a corporation organized and existing under the laws of Louisiana, herein represented by C.M. LEGLER, its Vice-President, acting by virtue of and under the authority granted in that certain Resolution of its Board of Directors dated August 24, 1983, a copy of which, certified by the Secretary of the said corporation, is attached hereto and made part hereof, (hereinafter referred to as "FSI")
who declared and acknowledged to me, Notary, that FSI is justly and truly indebted unto Beverly Taylor, wife of/and Roy F. Guste and Dorothy Schutten, wife of/and William J. Guste, Jr. (hereinafter referred to as "Guste") in the full sum of three million one hundred forty-four thousand five hundred forty and 00/100 ($3,144,540.00) DOLLARS represented by FSI's Note in that amount dated August 25, 1983, (as it may have been reduced by payments thereon) payable to the order of BEARER, which Note is due and payable and bears interest as provided therein, which said Note was secured by an Act of Mortgage dated August 25, 1983 passed before John C. Saunders, Jr., Notary Public for the Parish of Orleans and recorded in Book ____, folio ____ of the Mortgage Records of the Parish of St. Tammany, that wishing to be released from the said indebtedness due and owing as hereinabove stated, and availing itself of the provisions of Articles 2655 to 2659, inclusive, of the Revised Civil Code of the State of Louisiana, FSI does hereby make unto Guste a dation en paiement, by hereby transferring, conveying, delivering, granting, assigning and setting over unto:
BEVERLY TAYLOR,
wife of/and ROY F. GUSTE
herein represented by ROY F. GUSTE, her agent and attorney-in-fact in accordance with that Power of Attorney dated January 11, 1982 before John C. Saunders, Jr., Notary Public, annexed hereto, and ROY F. GUSTE, individually, both persons of the full age of majority and residents of and domiciled in the Parish of Orleans, State of Louisiana, who declared unto me, Notary, under oath, Beverly Taylor Guste in the said Power of Attorney and Roy F. Guste at this time, that they have each been married but once and then to each other, presently living and residing together at 1707 Palmer Avenue, New Orleans, Louisiana, 70118
and DOROTHY SCHUTTEN,
wife of/and WILLIAM J. GUSTE, JR.
herein represented by ROY F. GUSTE, their agent and attorney-in-fact in accordance with that Power of Attorney dated January 11, 1982 before John C. Saunders, Jr., Notary Public, annexed hereto, both persons of the full age of majority and residents of and domiciled in the Parish of Orleans, State of Louisiana, who declared unto me, Notary, under oath, that they have each been married but once and then to each other, presently living and residing together at # 4 Richmond Place, New Orleans, Louisiana, 70115,
here present accepting, all and singular, the property described on Exhibit A attached hereto and which property is located in the Parish of St. Tammany, State of Louisiana.
TO HAVE AND TO HOLD said property as herein described unto said Guste, their successors and assigns forever, without any warranty of title whatsoever, but with full subrogation to all the rights and actions of warranty which they have or may have against all preceding owners or vendors.
This transfer and conveyance of said property by said FSI is made and accepted for and in consideration of a sum equal to the entire balance due and owing under the Note which may be due to Guste or the holders of the Note and shall fully extinguish any and all obligations required by the Note and Mortgage and Guste accepts said property in full acquittance and discharge by Guste to FSI of the indebtedness in the amount of aforesaid.
The said indebtedness is represented by the note hereinabove described, there being no credits on either principal or interest, except as hereinabove set forth.
Guste, thereupon delivered to me, Notary, as fully paid, cancelled and acquitted, the above described Note in the sum of three million one hundred forty-four thousand five hundred forty and 00/100 ($3,144,540.00) dated August 25, 1983, and declared that the said Note having been paid in full, he as the last holder thereof does grant a full and complete release of the mortgage securing the payment of the said Note, and does hereby authorize and direct the Recorder of Mortgages of the Parish of St. Tammany, State of Louisiana, to cancel and erase entirely from his records the inscription of said mortgage, recorded in Book ____, folio ____, and I, said Notary, having cancelled the signature and notarial paraph on the said Note, have annexed the same hereto for reference.
By reference to the conveyance and mortgage certificates issued by the Recorder of Mortgages and the Registrar of Conveyances of the Parish of St. Tammany, which are hereto annexed, it does not appear that the said property has been heretofore alienated by FSI or is subject to any mortgages or encumbrances whatsoever, except ___________ _______________ and that Guste does take cognizance and that Guste declare themselves satisfied therewith, and releases me, Notary, from any and all responsibility in connection therewith.
THUS DONE AND PASSED, in my office in New Orleans, Louisiana, on the day, month and year herein first above written, in the presence of the undersigned competent witnesses, who hereunto sign their names with the said appearers and me, Notary, after due reading of the whole.
WITNESSES:
Karen L. Wells Roxanne M. Marshall
FRANCOIS SPOERRY INTERNATIONAL, INC.
BY: Charles M. Legler Charles M. Legler, Vice President
Roy F. Guste
Roy F. Guste, agent and attorney-in-fact for Beverly Taylor Guste, Dorothy Schutten Guste and William J. Guste, Jr.
Roy F. Guste Roy F. Guste
John C. Saunders
NOTARY PUBLIC
EXHIBIT "A"
PARCELS II AND III
PARCEL II
Being located in Section 33 Township 7 South, Range 10 East, and Section 4 Township 8 South, Range 10 East, St. Tammany Parish, Louisiana, the following described property:
I.
From the Section Corner common to Sections 4 and 5 Township 8 South, Range 10 East, and Sections 32 and 33 Township 7 South, Range 10 East, St. Tammany Parish, Louisiana, run North 00° 09' 32" West, 2734.28 feet to a point; thence East, 1620.00 feet to a point; this being the point of beginning.
From the point of beginning, run East 1650.00 feet to a point, thence South, 300 feet to a point, thence South 73° 30' West, 370.00 feet to a point; thence South 40° 00' West, 185.00 feet to a point; thence South 20° 00' West, 595.00 feet to a point; thence South 36° 15' East, 650.00 feet to a point; thence South 85° 00' East, 278.00 feet to a point; thence North 69° 00' East, 220.00 feet to a point; thence South 87° 30' East, 225.00 feet to a point; thence South 46° 58' 16" seconds East, 226.69 feet to a point; thence South 450.00 feet to a point; thence South 83° 34' West, 1390.14 feet to a point; thence South 73° 11' West, 646.25 feet to a point; thence North 532.73 feet to a point; thence North 49° 00' West, 146.82 feet to a point; thence North 24° 55' East, 380.00 feet to a point; thence North 35° 15' West, 380.00 feet to a point; thence North 58° 30' West, 250.00 feet to a point; thence North 22° 45' East, 160.00 feet to a point; thence North 10° 30' West, 275.00 feet to a point; thence North 23° 50' East, 350.00 feet to a point; thence North 380 feet back to the point of beginning.
This tract contains 79.17 acres more or less.
II.
All land, shore and water bottom South of the following described line:
From the Section corner common to Sections 4 and 5 Township 8 South, Range 10 East, and Sections 32 and 33 Township 7 South, Range 10 East, St. Tammany Parish, Louisiana, run South 423.00 feet to a point; thence go North 59° 28' 00" East a distance of 351.24 feet to a point; thence go North 74° 28' 00" East a distance of 825.26 feet to a point; thence go North 73° 10' 60" East a distance of 778.04 feet to the point of beginning.
From the point of beginning go North 73° 11' 00" East a distance of 646.25 feet to a point; thence go North 83° 34' 00" East a distance of 1390.14 feet to a point which is the Eastern line of Parcel II.
PARCEL III
Being located in Section 33 Township 7 South, Range 10 East, and Section 4 Township 8 South, Range 10 East, St. Tammany Parish, Louisiana.
I.
From the Section Corner common to Sections 4 and 5 Township 8 South, Range 10 East, and Sections 32 and 33 Township 7 South, Range 10 East, St. Tammany Parish, Louisiana, run North 00° 09' 32" West, 2734.28 feet to a point; thence East, 3270.00 feet to a point; this being the point of beginning.
From the point of beginning, run East 2022.14 feet to a point, thence South 2027.72 feet to a point, thence South 83° 34' West a distance of 1451.24 feet to a point; thence North 450.0 feet to a point thence North 46° 58' 16" West a distance of 226.69 feet to a point; thence North 87° 30' West a distance of 225.00 feet to a point; thence South 69° 00' West a distance of 220.00 feet to a point; thence North 85° 00' West a distance of 278 feet to a point; thence North 36° 15' West a distance of 650.00 feet to a point; thence North 20° 00' East a distance of 595.00 feet to a point; thence North 40° 00' East a distance of 185.00 feet to a point; thence North 73° 30' East a distance of 370.00 feet to a point; thence North 300.00 feet to the point of beginning.
This tract contains 106.429 acres more or less.
II.
All land, shore and water bottom South of the following described line:
From the Section corner common to Sections 4 and 5 Township 8 South, Range 10 East, and Sections 32 and 33 Township 7 South, Range 10 East, St. Tammany Parish, Louisiana, run South 423.00 feet to a point thence go North 59° 28' East a distance of 351.24 feet to a point; thence go 74° 28' East a distance of 825.26 feet to a point; thence go North 73° 11' East a distance of 1424.29 feet to a point; thence go North 83° 34' East a distance of 1390.14 feet to the point of beginning.
From the point of beginning go North 83° 34' East a distance of 1451.24 feet to a point on the North-South line separating Sections 33 and 34, Township 7 South, Range 10 East.
FRANCOIS SPOERRY INTERNATIONAL, INC.
RESOLUTION
"BE IT RESOLVED, that Charles M. Legler, vice-president of this corporation, is duly authorized in the name and on behalf of this corporation to purchase any real estate in the Parish of St. Tammany, the State of Louisiana, or elsewhere, for such amount and on such terms and conditions and with such clauses and stipulations contained in the act of purchase, as he thinks proper and advisable; and also to sell any real estate owned by this corporation for such amount and on such terms and conditions as he may determine or think advisable, and to receive and receipt for the selling price and to give full acquittance and discharge therefore; to borrow such sums of money from any person or company as he may deem advisable; to mortgage any real estate owned by the corporation under a conventional mortgage, for such amounts and on such terms and conditions as he may determine; with full authority on his part to sign and execute any act or acts to contain such clauses, stipulations and obligations as he may deem advisable, including confession of judgment, sale by executory process, waiver of appraisement, and the non-alienation clauses; with further authority to sign and execute any and all documents or deeds, notes and mortgage notes, building contracts, necessary or advisable to carry out fully the foregoing objects and purposes to build and construct houses and other improvements on, or make repairs or additions to property owned by this corporation for itself, or to construct residences or other buildings for others on property owned by them, under contracts direct for such owners, or through any lending agency, and with or without bond, and for such amount and on such terms as said officer deems advisable; the intent of this resolution being to place full authority with said officer to transact completely the business of this corporation as outlined in its charter, in which its objects and purposes are set forth, all without the necessity of the adoption by the Board of Directors of a separate resolution to cover such transaction, or to cover each sale, purchase or mortgage, or the construction of any improvements on the property of this corporation for itself, or under building contract as contractor for the accounts of others; with further authority to do anything in the premises which may be necessary or advisable to carry out fully all or any of the purposes of this resolution."
CERTIFICATE
I certify that I am the Secretary of Francois Spoerry International, Inc. and that the above resolution is a true and correct copy of a resolution unanimously adopted at a meeting of the Board of Directors of said corporation held at its office at New Orleans, Louisiana on August 24, 1983, all of the members of the Board of Directors being present and voting.
/s/ [signature] Secretary
Dation 2
United States of America
State of Louisiana
Parish of Orleans
ACT OF DATION EN PAIMENT
BY: FRANCOIS SPOERRY INTERNATIONAL, INC. a Louisiana Corporation
TO: ROY F. GUSTE, BEVERLY TAYLOR GUSTE, DOROTHY SCHUTTEN GUSTE and WILLIAM J. GUSTE, JR.
BE IT KNOWN, that on this 25th day of August, 1983.
BEFORE ME, the undersigned, a Notary Public, duly commissioned and qualified, in and for the Parish and State aforesaid and in the presence of the witnesses hereinafter named and undersigned:
PERSONALLY CAME AND APPEARED:
FRANCOIS SPOERRY INTERNATIONAL, INC., a corporation organized and existing under the laws of Louisiana, herein represented by C.M. LEGLER, its Vice-President, acting by virtue of and under the authority granted in that certain Resolution of its Board of Directors dated August 24, 1983, a copy of which, certified by the Secretary of the said corporation, is attached hereto and made part hereof, (hereinafter referred to as "FSI")
who declared and acknowledged to me, Notary, that FSI is justly and truly indebted unto Beverly Taylor, wife of/and Roy F. Guste and Dorothy Schutten, wife of/and William J. Guste, Jr. (hereinafter referred to as "Guste") in the full sum of three million one hundred forty-four thousand five hundred forty and 00/100 ($3,144,540.00) DOLLARS represented by FSI's Note in that amount dated August 25, 1983, (as it may have been reduced by payments thereon) payable to the order of BEARER, which Note is due and payable and bears interest as provided therein, which said Note was secured by an Act of Mortgage dated August 25, 1983 passed before John C. Saunders, Jr., Notary Public for the Parish of Orleans and recorded in Book ____, folio ____ of the Mortgage Records of the Parish of St. Tammany, that wishing to be released from the said indebtedness due and owing as hereinabove stated, and availing itself of the provisions of Articles 2655 to 2659, inclusive, of the Revised Civil Code of the State of Louisiana, FSI does hereby make unto Guste a dation en paiement, by hereby transferring, conveying, delivering, granting, assigning and setting over unto:
BEVERLY TAYLOR,
wife of/and ROY F. GUSTE
herein represented by ROY F. GUSTE, her agent and attorney-in-fact in accordance with that Power of Attorney dated January 11, 1982 before John C. Saunders, Jr., Notary Public, annexed hereto, and ROY F. GUSTE, individually, both persons of the full age of majority and residents of and domiciled in the Parish of Orleans, State of Louisiana, who declared unto me, Notary, under oath, Beverly Taylor Guste in the said Power of Attorney and Roy F. Guste at this time, that they have each been married but once and then to each other, presently living and residing together at 1707 Palmer Avenue, New Orleans, Louisiana, 70118
and DOROTHY SCHUTTEN,
wife of/and WILLIAM J. GUSTE, JR.
herein represented by ROY F. GUSTE, their agent and attorney-in-fact in accordance with that Power of Attorney dated January 11, 1982 before John C. Saunders, Jr., Notary Public, annexed hereto, both persons of the full age of majority and residents of and domiciled in the Parish of Orleans, State of Louisiana, who declared unto me, Notary, under oath, that they have each been married but once and then to each other, presently living and residing together at # 4 Richmond Place, New Orleans, Louisiana, 70115,
here present accepting, all and singular, the property described on Exhibit A attached hereto and which property is located in the Parish of St. Tammany, State of Louisiana.
TO HAVE AND TO HOLD said property as herein described unto said Guste, their successors and assigns forever, without any warranty of title whatsoever, but with full subrogation to all the rights and actions of warranty which they have or may have against all preceding owners or vendors.
This transfer and conveyance of said property by said FSI is made and accepted for and in consideration of a sum equal to the entire balance due and owing under the Note which may be due to Guste or the holders of the Note and shall fully extinguish any and all obligations required by the Note and Mortgage and Guste accepts said property in full acquittance and discharge by Guste to FSI of the indebtedness in the amount of aforesaid.
The said indebtedness is represented by the not hereinabove described, there being no credits on either principal or interest, except as hereinabove set forth.
Guste, thereupon delivered to me, Notary, as fully paid, cancelled and acquitted, the above described Note in the sum of three million one hundred forty-four thousand five hundred forty and 00/100 ($3,144,540.00) dated August 25, 1983, and declared that the said Note having been paid in full, he as the last holder thereof does grant a full and complete release of the mortgage securing the payment of the said Note, and does hereby authorize and direct the Recorder of Mortgages of the Parish of St. Tammany, State of Louisiana, to cancel and erase entirely from his records the inscription of said mortgage, recorded in Book ____, folio ____, and I, said Notary, having cancelled the signature and notarial paraph on the said Note, have annexed the same hereto for reference.
By reference to the conveyance and mortgage certificates issued by the Recorder of Mortgages and the Registrar of Conveyances of the Parish of St. Tammany, which are hereto annexed, it does not appear that the said property has been heretofore alienated by FSI or is subject to any mortgages or encumbrances whatsoever, except ___________ _______________ and that Guste does take cognizance and that Guste declare themselves satisfied therewith, and releases me, Notary, from any and all responsibility in connection therewith.
THUS DONE AND PASSED, in my office in New Orleans, Louisiana, on the day, month and year herein first above written, in the presence of the undersigned competent witnesses, who hereunto sign their names with the said appearers and me, Notary, after due reading of the whole.
WITNESSES:
Karen L. Wells Roxanne M. Marshall
FRANCOIS SPOERRY INTERNATIONAL, INC.
BY: Charles M. Legler Charles M. Legler, Vice President
Roy F. Guste
Roy F. Guste, agent and attorney-in-fact for Beverly Taylor Guste, Dorothy Schutten Guste and William J. Guste, Jr.
Roy F. Guste
Roy F. Guste
John C. Saunders J
NOTARY PUBLIC