The opinion
SIMON, Justice
(dissenting).
The basis of the majority opinion on rehearing is predicated on the holding that the dation is null ab initio because the redemption clause is prohibited under LSA-C. C. Art. 2031 which provides that “every condition of a thing impossible, or contra bonos mores (repugnant to moral con *901 duct) or prohibited by law, is null, and renders void the agreement which depends on it.” I respectfully dissent therefrom and, in addition to my original opinion, assign the following reasons:
The questions presented are: (1) Is a dation en paiement of an immovable by a husband to his wife, in restitution of her paraphernal effects, invalid because the husband retains the right of redemption for a fixed period of years? (2) Is the reservation of the right of redemption a stipulation prohibited by law between husband and wife; and, if so, does it nullify the dation en paiement ab initio; or, is such stipulation merely considered as not written?
LSA-C.C. Art. 1790 inter alia declares that contracts between a husband and wife are forbidden; but LSA-C.C. Art. 2446 provides three exceptions, one of which (paragraph 2) is, “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.” A transaction such as this between husband and wife, wherein he transfers to her an immovable in restitution of her paraphernal funds, is characterized by our civil code, except for specific differences, as a contract of sale. LSA-C.C. Art. 2659. The difference between the dation en paiement and a contract of sale is that the sale is perfect by the mere consent of the parties, while the dation is made only by delivery (LSA-C.C. Art. 2656), with the following effect:
(1) That in a dation the risk of the thing given never falls upon the creditor before delivery, unless he has delayed it beyond a reasonable time; whereas in a contract of sale, delivery is presumed to be made when all terms of the agreement have been decided upon (LSA-C.C. Art. 2657); and,
(2) A dation by an insolvent debtor to a creditor is an invalid preference except when made to a wife; whereas a sale by an insolvent for a proper cash consideration is not considered an unlawful preference (LSA-C.C. Art. 2658).
Except for these differences “the giving in payment is subjected to all the rules which govern the ordinary contract of sale” (LSA-C.C. Art. 2659).
The tradition or delivery of an immovable, always accompanies the public or authentic act which transfers the property and vests title as between the parties. LSA-C.C. Arts. 2479, 1920, 1921.
LSA-C.C. Art. 2567 provides that the right of redemption is an agreement by which the vendor reserves to himself the power of taking back the thing sold by returning the price paid for it. Manifestly, if a redemption sale be one in truth and in fact, then it is not a pignorative contract nor one executed as a mortgage or other se *903 curity device. Butler v. Marston, 145 La. 41 , 81 So. 749 .
We have consistently adhered to the general principle that a deed with the right of redemption, regular on its face, is translative of title; and the purchaser is vested with a complete title as owner, defeasible only by the exercise of the right of redemption. The right of redemption is one which must be limited within a fixed period of time and which under LSA-C.C. Art. 2568, may not exceed the period of ten years.
Since a dation en paiement is governed by the rules governing sales, the wife should legally occupy the position of any other purchaser, and be permitted to enter into any stipulation or reservation except that of alienating her dotal property, or of becoming security for her husband’s debts, (LSA-C.C. Art. 1790) contracted by him before or during the marriage. LSA-C.C. Art. 2398.
In Glaze v. Duson, 40 La.Ann. 692 , 4 So. 861 , we held that a dation en paiement by a husband to the wife, whereby she assumed the debt due his vendor, was a contract prohibited by law, and title did not pass, because the wife assumed an illegal obligation.
Our jurisprudence establishes beyond dis-: pute that a contract between husband and wife, specifically prohibited by our codal articles, is illegal, null and void.
Assuming, arguendo, that the granting or reservation of the right of redemption is an illegal condition, such illegality should not invalidate the dation ab initio. In every dation en paiement the primary and paramount cause or consideration is the payment and extinguishment of an indebtedness due to a creditor, in this instance the wife. The restitution by the husband of the wife’s paraphernal effects is an act favored by our law and jurisprudence as securing to her a just and honest claim against him. It is highly unjust and discordant to permit a husband who has executed a dation, legal in all respects, to avoid and be liberated from such obligation solely because he has reserved an illegal right of redemption for ten years, the exercise of which was purely personal to him, and which he never exercised.
Furthermore, the redemption clause belongs neither to the essence nor the nature of the contract. Being dependent on the will of the husband, it should be classified and treated only as an accidental stipulation. LSA-C.C. Art. 1764 recognizes the inefficacy of accidental stipulations, such as belong neither to the essence nor the nature of the contract, but which depend solely on the will of the parties. Although LSA-C.C. Arts. 1895 and 2031 provide that stipulations or conditions prohibited by law or repugnant to moral conduct nullify the contract, these provisions are applicable *905 only to stipulations or conditions which are the principal cause of the contract. An accidental stipulation, such as the right of redemption, should not be held to invalidate that which is the very essence and nature of the contract, namely the payment of a debt by the transfer of property. This right of redemption was not the primary consideration for the dation en paiement. The dation was legal and valid without the redemptive clause; each of the parties giving something, the wife giving up her claim against the husband, and he giving his property. Hence, if this right of redemption should be declared illegal, the only effect should be its elimination. Labatt v. Louisiana Adjustment Bureau, La.App., 185 So. 702 ; Sandidge v. Sanderson, 21 La. Ann. 757 ; and Satterfield v. Spurlock, 21 La.Ann. 771 .
Further and a propos LSA-C.C. Arts. 1861-1862 and Arts. 2589-2600, a dation between husband and wife, defined as a contract of sale, would be subject to the law governing lesion; yet, in such a case the dation would not be treated as a nullity, as the wife, like any other purchaser, would have the option to pay the deficiency in price and retain the property.
Therefore, the conclusion seems inevitable that an invalid reservation of the right of redemption would alone be interdicted, and not the dation en paiement in toto ab initio. To do otherwise would be giving LSA-C.C. Art. 2031 a strained and narrow interpretation. The dation between husband and wife does not depend on an illegal or prohibited condition. Recognizing a transfer in restitution of the wife’s paraphernal funds, thereby acquitting the husband from further liability therefor, the quid pro quo is perfectly valid. The right of redemption, if illegal, can only be treated as a collateral or accidental reservation.
In dispositions inter vivos and mortis causa, conditions which are impossible or contrary to law or contra bonos mores do not nullify such disposition. Such conditions are treated and considered only as not written. LSA-C.C. Art. 1519.
In the case of Hewitt v. Williams, 47 La. Ann. 742 , 17 So. 269, 272 , we said: “The law favors restitution to the wife, and looks with favor upon the efforts of the husband to secure her just and honest claim * * * against him. The fact that he is insolvent and embarrassed, that he is pursued by his creditors by harsh remedies, cannot be invoked to destroy the validity of the transaction. The wife, like any other creditor, is sustained in her vigilant efforts to secure her debts; and the husband can be excused if, finding himself in financial straits, affection for his wife, and his duty to her and to their children, impels him to secure her just claim, and to aid and assist her in all proper methods in that direction.”
*907 In Jones v. Thibodaux, 196 La. 533 , 199 So. 633, 634 , Justice Odom pointed out that the law greatly favors the restitution by the husband to his wife of her paraphernal property in the following language: “To maintain a revocatory action, the plaintiff must allege and prove that his debtor was insolvent at the time the transfer complained of was made. Bull v. Andrus, 137 La. 982 , 69 So. 799 ; Harman v. Defatta et al., supra [ 182 La. 463 , 162 So. 44 ].
“But the settled jurisprudence of this state is that the rules governing the revocatory action do not apply to a dation en paiement made by a husband to his wife in satisfaction of her just claim against him for paraphernal funds which he has received from her and alienated. Judice v. Neda, 8 La.Ann. 484 ; Newman & Co. v. Eaton, 27 La.Ann. 341 ; Lehman, Abraham & Co. v. Levy, 30 La.Ann. 745 ; Levi v. Morgan, 33 La.Ann. 532 ; Thompson & Co. v. Freeman, 34 La.Ann. 992 ; Hewitt v. Williams, 47 La.Ann. 742 , 17 So. 269 ; Ardis & Co. v. Theus & Armistead, 47 La. Ann. 1436 , 17 So. 865 ; Koenig v. Huck, 51 La.Ann. 1368 , 26 So. 543 ; Fleitas v. Richardson, 147 U.S. 550 , 13 S.Ct. 495 , 37 L.Ed. 276 .” So solicitous is the law for the protection of a wife in the restitution of her paraphernal estate, that the dation to her by her husband, even though insolvent, is not considered violative of nor an illegal preference under the federal bankruptcy law.
It is well settled that a deed, with the right of redemption, regular on its face, is translative of title, the purchaser being vested with complete ownership defeasible only by the exercise of that right within the stipulated period of time, not to exceed ten years. LSA-C.C. arts. 2567-2568; Levy v. Ward, 32 La.Ann. 784 ; Singleton’s Heirs v. Kelly, 11 La.Ann. 647 ; Lerner Shops of Louisiana v. Reeves, La.App. 1954, 73 So.2d 490 ; Jackson v. Gohlson, La.App.1957, 91 So.2d 394 .
In the case at bar the dation, executed on August 21, 1942, contained a stipulation granting to the husband the right or option to repurchase the property by “paying the purchase price above given plus 5'% per annum interest thereon until and if redeemed,” this option to be exercised within the period of ten years from date of transfer. It is most significant that the husband did not exercise this right or option within the ten year period but now seeks to avoid the dation by contending that his own reservation of the right of redemption nullified ab initio the dation, and thereby defeats the very act as to which the law seeks to give her paramount protection.
A careful analysis of the record firmly convinces me that the dation was made in just restitution of the wife’s paraphernal claim, which the husband authentically admitted having received from her; that the *909 transfer was fully effected; and that the failure of the husband to exercise his right of redemption within the time specified stripped him of any claim thereto; and that title became absolutely vested in the wife, and entitles her to full recognition thereof. Keough v. Meyers, 43 La.Ann. 952 , 9 So. 913 .
The net effect of the majority opinion is to permit the husband to accomplish indirectly by revocatory action the action for specific performance of the doubtful right of redemption, lost by the lapse of ten years.