On Rehearing
PONDER, Justice.On this rehearing the defendant (husband) contends that the act designated as a dation en paiement is a nullity on its face, and, in the alternative, if the instrument on its face is valid, that parol evidence is admissible to show that there was no real indebtedness on the part of the husband to the wife.
The plaintiff and defendant were married on December 9, 1930, each owning separate estates. On August 21, 1942 the husband executed an act purporting to be a dation en paiement to his wife, conveying one-half interest in 145 acres of land located in East Feliciana Parish, to extinguish an alleged indebtedness of $750, which the husband had received from her separate funds and used in his private affairs in business. In this act, purporting to be a dation en paiement, we find a redemptive clause which reads as follows:
“It is further agreed that any time within the space of ten (10) years from this date, this said vendor to have the option to repurchase this said land by paying the price above given plus five (5%) per cent per annum thereon until and if redeemed.”
On May 11, 1955 the wife instituted this partition proceeding alleging that she is co-owner in the 145 acres of land, having acquired a one-half interest in same by virtue of the dation en paiement referred to above, and asked for a partition of the property in kind in order that she may assert and regain the right of administration and complete use and enjoyment of her property.
*897The husband answered the suit affirmatively pleading that the instrument, the purported dation en paiement, on which the wife bases her claim, is null and void, being a contract which is prohibited between husband and wife under our law, and, in the alternative, that there was no consideration for the transfer and that the property has never been delivered to her.
Under the provisions of Article 1790 of the LSA-Civil Code, a husband and wife are specifically prohibited from contracting with each other except in the following instances provided for in Article 2446 of ,the LSA-Civil Code, viz.:
“1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
“2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
“3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.”
It has long been the jurisprudence of this state that dations between husband and wife are exceptional contracts and must comply with every provision of the law. Isaacson v. Mentz, 33 La.Ann. 595; Chaffe v. Scheen, 34 La.Ann. 684, 688; Hyman v. Schlenker, 44 La.Ann. 108, 10 So. 623; Colvin v. Johnston, 104 La. 655, 29 So. 274; Pelletier v. State National Bank, 117 La. 335, 41 So. 640; Pons v. Yazoo & M. V. R. Co., 122 La. 156, 47 So. 449; Kelly v. Kelly, 131 La. 1024, 60 So. 671; Viguerie v. Viguerie, 133 La. 406, 63 So. 89; Guillot v. Guillot, 141 La. 86, 74 So. 704; Sonnier v. Fris, 220 La. 1085, 1086, 58 So.2d 393. Attempted contracts between husband and wife not included in these exceptions, Article 2446, are nullities. Hayden v. Nutt, 4 La.Ann. 65; Viguerie v. Viguerie, supra; Carroll v. Cockerham, 38 La.Ann. 813.
In the case of Pelletier v. State National Bank, supra, it was said by this Court [117 La. 335, 41 So. 642]: “The right of the husband to make a sale or dation en paiement to his wife is an exceptional right which is to be exercised only when and to the extent which the law allows this to be done.” The case of Colvin v. Johnston, supra [104 La. 655, 29 So. 276], recognizes the essentials to the validity of a dation en paiement by the husband to the wife to be “the just and honest claim of the wife against the husband, the just proportion of the value of the thing given to the amount of the wife’s claim, and the delivery to the wife of thing given to her in satisfaction of her debt.” This principle has been recognized in all of the above cited cases.,
Upon examination of the instrument of August 21, 1942, we find that it *899was 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. It does not comply with the stringent principles governing contracts between husband and wife. It would be unsafe to depart from the strict rules set out in the Civil Code governing contracts of this nature; moreover, we are not warranted in departing from these rules.
We have examined the many authorities cited by the parties but find no case of a dation en paiement between husband and wife, with a right of redemption, as having been recognized by this Court as a valid contract. Therefore, we must look to the provisions of the Civil Code exclusively in the ascertainment of the validity of the instrument.
There could have been no absolute delivery of the property at the time the instrument was executed. It was by its very terms a conditional delivery and the husband could regain ownership of the property at any time within the ten year period. During that period, the wife could not have disposed of the property free of this right of redemption; therefore, it was not an out and out giving. It was recognized in the case of Colvin v. Johnston, supra, although the dation en paiement in that case was upheld, that it must conform strictly with the articles in the Civil Code and that if it is speculative or aleatory it would be contrary to the policy of our law and, therefore, void.
The contract herein was not executed in compliance with the Civil Code and, therefore, it is null and void and the inaction on the part of the husband thereafter to avail himself of the right of redemption could not convert it into a valid dation en paiement.
Insofar as the second contention is concerned, it is not necessary for us to pass upon whether or not parol evidence would be admissible to show an existing indebtedness in view of the fact that we have reached the conclusion that the instrument on its face is a nullity.
For the reasons assigned, the judgment of the district court is affirmed at appellant’s cost.
SIMON, J., dissents.