Eustis, C. J.
This is a question which has been very fully discussed, and decided several times by the Supreme Court, under the jurisprudence which prevailed before the repeal of the laws of Spain. The court always held that, the article in the Code cited in argument, did not repeal the exceptions which still existed limiting its operations. Verret and others v. Theriot, 15 La. 112. Le Blanc v. Landry, 7 Mart. N. S. 668. Duncan's Executors v. Hampton, 6 Mart. N. S. 32.
The intention of the testatrix that the undisposed of portion of her estate' should be equally divided among her children and their descendants, in equal shares, as directed, is evident; but the form of a sale, in which the conveyance of these tracts of land is made, we think shows the intention that something beside a donation, subject to collation, was intended by that act. Both the conveyance and the will were made in Philadelphia. The petition charges that “ said sale was intended as a donation, and is to be considered as such.” If it was, the manifestation of will on the part of the donor that it should inure as an advantage to her son, we think unequivocally results from its terms. She considered that these lands might of right be given to the defendant, without doing injustice to her other heirs; and of this we have evidence in this recital of the conveyance s “Being the same tracts formerly belonging to Winihrop Sargent [202]*202and John Steele, and which, by conveyance of his share by said John Steele to said Winthrop Sargent, became wholly vested in said Winthrop Sargent, in fee simple." One of the tracts, called the Winthrop Sargent tract, was granted to the father of the defendant by the Spanish government, and formed no part of the community existing between him and his wife. Heirs of Rouquier v. His Executors, 5 Mart. N. S. 99. Frique v. Hopkins, 4 Mart. N. S. 212. Gayoso de Lemos v. Garcia, 1 Mart. N. S. 324.
The donor appeared to consider them as of' right the' patrimony of the only son of- her last husband, and wé think made the conveyance in the furtherance of that idea, to the exclusion of the relatives of the half blood. This view is fortified by the fact that the do u or was a resident of, and domiciliated in, P ennsylvania, where both instruments were made, by the laws of which collation cannot be exacted, as under the laws of Louisiana. Harrison v. Nixon, 9 Peters, 503. Story, Conflict of Laws, § 491. Gordon v. Brown, 3 Haggard Ecc. Rep. pp. 455, 444, et seq.
Prentiss, for a rehearing. 'The plaintiffs ask for a rehearing of so much of this causo as relates to defendant’s liability to collate with them, such poitionof the two tracts of land as he received by-donation from his mother during her life time
The court crred-in deciding that the donation to defendant, by his mother, is not subject to collation.
I. The deed from Mary Sargent to G. W. Sargent, is to be governed entirely by the laws of Louisiana, both as to its construction'and effect. Nor does the fact of its having been executed in Philadelphia, alter the matter; it has precisely the effect it would have if executed in Louisiana, and no more. Story lays down the doctrine in his Conflict of Laws, ss. 424,427, 428, 435, as being recognized by the common law, and also-by all the foreign jurists, “ that the laws of the place where real property is situated, exclusively govern in respect to the rights of parties, the modes of transfer, and the solemnities which should \accompany them.” Art. 10, Civil Code, says: “ The effect of acts passed in one country to have' effect in another country, is regulated by the laws-of the country where they are to havo effect.” At all events, this rule is universal in regard to lands. It is the law of Pennsylvania, as well as all the common law States. The legal presumption is that, Mary Sargent knew that- her deed to lands in Louisiana, would be governed in its effects, by'the laws of Louisiana. The fact that the deed, as well as the will, “ were made in Philadelphia,” so far as the disposition of lands hi Louisiana is concerned, does not change the legal construction of either instrument
■ II. The conveyance of these tracts of-land, notwithstanding its apparent form of a sale, is upon its face a pure donation inter vivos. It is not a sale even in form; it wants one of the essential requisites of a sale, to wit, a price. The nominal price of five dollars is no -priee. Vide Pothier,- “ Traité du Contrat de Vente,” nos. 16,17,18. “ A prise that bears no proportion to the value of the things sold, is not a true price j for instance, if one sells a large tract of land for one crown, for the price being the estimate made by the contracting parties of the value of the thing, an estimate wliioh boars no proportion to its value cannot be considered a serious one, nor consequently a real priee. Such a contract is not a sale, but a donation, falsely termed a sale, which must be subject to all the formalities of a donation. Pothier “Traité du Contrat de Vente,” nos. 19,20. This doctrine of Pothier is recognized and relied upon by Judge Post, iii the case of D'Orgenoy et al. v. Droz, 13 La. 389-398. Also la Holmes v. Patterson, 5 Mart. 693. Tho rule is expressly adopted by our Code. Art. 2439 provides that the price “ ought not to be out of all proportion to the value of the thing; for instance, the sale of a plantation for a dollar, could not be considered as a fair sale ; it would be considered, as a• donation disguised." The same is the rule of the common law. Vida 2 Kent’s Com. 477. In the present caso, the conveyance is of sixteen hundred arpents of valuable land. The consideration is “natural affection and five dollars. “ Now, this five dollars is no real price, nor does this conveyance constitute a real sale, either according to the civil or common law. At common law, it is the usual, almost the universal mode, of making gifts, or pure donations inter vivos.
It is neverpresumed that the nominal consideration is actually paid; and nine out of ten of all the pure donations ever made, at common law, have been clothed in the form of the present convejmnce, and no common iaw lawyer ever dreamed of considering such a convey - anee as any thing but apure and simple donation. The court suggests in its opinion, “ that something besides a donation, subject to collation, was intended,” &c. This, conclusion, wa think wholly unwarranted both in law and fact. But wo will consider this point by itself
[203]*203III. We have attemptod to'show that the eonvoyanco from Mary Sargent toG. W. Sargent, was not a sale, hut a pure donation inter vivos, and is to be governed in its operation and effect by the laws of Louisiana, where the lands lie, and not by the laws of Pennsjdvania, where the deed was oxecuted. Now, is this donation subject to collation by tho laws of Louisiana! Let us refer to tho rules laid down in the Code on this subjoct. Art. 1306, of the Civil Code, provides “that children or grand children coming to the succession of their fathors or mothers, or other ascendants, must collate what they have received from them by donation inter vivos, directly or indirectly, unless tho donations and legacies havo been made to them expressly as an advantage over their co-heirs, and besidos their portion.” Tho samo article preserves that “ this rule takes place, whether the children, &e., succeed to their aseendauts, as legal or as testamentary heirs,” ifc. This conveyance is to ho construed then precisely as if Mrs. Sargent had died intestate, unless there is something in the will affecting it. Art. 1307 lays down tho foundation of “the obligation of collating,” to wit: “ the equality which must he naturally obsorved between children and other lawful descendants, who divide among.them the succession of their father, mother, &c.” Art. 1308, says: “Collation must tako place whether the donor has ordered it, or has remained silent on tho subject; for collation is always presumed where it has not been expressly forbidden,” Art. 1309 próvidos that collation shall not take place, “ if the donor has formally expressed his will, that what he thus gave was an advantage or extra part, unless tho valuó of tho object exceed tho disposable portion, .&c. Art. 1310 provides that, “ tho deelaaation that the gift is made as an advantage or oxtraportion, may he made not only in the instrument where such disposition is contained, but even afterwards by an act passed boforo a notary and two witnesses.” Art. 1311 says:“ The declaration .that the gift or legacy is intended as an advantage, or extra portion, maybe made in other equivalent terms, provided they indicate, in .an unequivocal manner, that such was tho will of the donor.”
The last four articles show conclusively, that gifts or donations inter vivos are subject to collation, unless the donor has expressly declared the contrary, either in the act of donation, or some subsequent instrument; and this declaration must be in terms indicating in an unequivocal manner, such an intention on .the part of tho donor. Now there cannot be found in tho conveyance from Mrs. Sargent, nor in hor will, any express declaration that this donation was intended as an advantage, or extra portion; nor .can there bo found, according to art. 1311, any declaration made in other equivalent terms, indicating in an unequivocal manner, that such was the will of the donor.
What are the expressions in this conveyance, equivalent to an express declaration, indicating unequivocally the donor’s intention, that this donation should he held as an extra portion, &e. Let us examine those upon which the court roly as the basis of their judgment.
The court says: “jBut.the form of a sale in which the conveyance of these tracts of land is made, we think shows an intention that something besides a donation subject to collation, was intended by that act.” Now we have attempted to show that, both by the civil and the common law, this form of sale, with a mere nominal .price, does not alter its character and effect, as a donation; but even as a donation disguised in a sale, it is subject to collation equally with a pure donation. In the caso of Bossier v. Vienne, 12 Mart. 421, the court decided that, “ when the father sells to tho son at a very low price, the advantage thus conferred is subject to collation. In Benton’s heirs v. Benton et al., 14 La. 352, it was held “ that every donation, or advantage given to heirs is liable to collation, unless expressly excepted by the donor." This, too, was a case in which the donation had been made in Georgia. But the rale is .expressly laid down in the Code, art. 1326, which is as follows: “ The advantage which a father bestows upon his son, .though in any other manner than by donation or legacy, is likewise subject to collation. Thus when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son’s estate, all that is subject to collation.” Under this article, how can it he urged that the form of a sale, ..with a mere nominal consideration, indicates an intention that the property so conveyed shall not he subject to collation! Such a deduction is at war with both the Code and the adjudicated cases.
But the court proceeds: “The manifestation of will on the part of the donor, that it should inure as an advantage to her son, we think unequivocally reeults from its terms. She considered that these lands might, of right, he given to the defendant, without doing injustice, &c.; and of this, we have evidence in this recital of tho conveyance, ‘being the same tracts formerly belonging to Winthrop Sargent and John Steele, and which, by conveyance of his share by said John Steele to said Winthrop Sargent, became wholly vested in Winthrop Sargent, in fee simple.’ The donor appeared to consider them as of right the patrimony of the only son of her last husband, and, we think, she made the conveyance in furtherance of that idea, to the exclusion of the relatives of the half blood.”
Now, as to tho description of the land having been acquired from John Steele, &c., this does not constitute an express declaration, that the .donation was intended as an extra portion, nor does it amount to a declaration in equivalent terms, under art. 1311; and we respectfully urge that, unless it amounts to such a declaration, it cannot overcome the positive presumption of the Code, that collation is intended and understood. But what does the expression amount to! It is mere description of the property. It contains no declaration [204]*204of motivo or intention. The motivo or consideration had already been fully expressed. It was “natural affection for (her) son.” But the court says this land originally belonged to tho defendant’s father, and therefore Mrs. Sargent thought he had a right to it. W e see no warrant for this prosumption. At the time of the donation, tho land belonged to her absolutely, at least tho portion we claim to be collatod; the heirs were all equally of hor blood, and thero is nothing to show that she'did not equally regard them. On tho contrary, her will shows that they occupied perfect equality in her regal’d. By her will, she divides her estate equally among them. This estate consisted of lands principally in Louisiana; among these lands are the Thompson tracts, which the court has decided in this veiy case, are to be divided betwoen defendant and the children of the first marriage. Now, if Mrs. Sargent, in her will, made no distinction among her children as to the origin of tho property, why should it be presumed she intended it by the conveyance to defendant? Tho Thompson lands came to her by inheritance from oho of her children of the first marriago; the lake St. John tract came to her in part as community property, and part by inheritance from one of the children of the second marriage. She divides the Thompson tracts equally between the children of both marriages. Wo think this affords strong presumption, that she did not intend tho donation of the lake St. .John tracts to bo an extra portion, but that they should bo collated. But on which ever side may be the weight of presumption, is of little importance; we invoke the benefit of articles 1307, 1308, 1309, 1310 and 1311 of tho Louisiana Code, and under these articles deny the right of the court to presume, that collation was not intended, unless such presumption is drawn from an express declaration of the donor to that effect.
IV. Tho conveyance from Mary Sargent to defendant, is null and void. As a sale, it js clearly void for want of a serious price, according to tho authorities already cited above. It is void as a donation for want of form; it not being executed in tho manner and with the solemnities required by tho Code. We have already attempted to show that this was not a sale but a donation inter vivos¿ The Civil Codo, art. 1523, declares that “ an act shall be passed before a notary public and two witnesses, of every donation inter vivos of immovable property, of slaves or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.” In the present case, tho donation is by priyate act. It was executed in presence of three witnesses, but not before a notary. After its execution, it was acknowledged before the mayor of Philadelphia. This is clearly not an authentic act under the provision of the article just cited, and we contend that it is null. Tho corresponding article of the Code of 1808, was different iu its phraseology, and was subjected to a different construction. That article (53, Code of 1808, p. 220,) declared “all acts containing donations inter uitws, must bo passed before a notary public and two witnessos, &c,, .othorwise thoy are null and void.
In the case of Trahan v. McManus, 2 La. 209, tho court decided that a donation under .the form of an onerous contract, was not void, because not made as an authentic act. But .the reason given by judge Porter, is founded upon the peculiar phraseology of the old Code, He says: “ The opinion called for embraced tho question whether a donation under the form of an onerous contract, was null and void. This our Code has not said. It does not .declare that all donations shall be null and void, unless they pursue the form indicated,” Again, in the same opinion, “ the prohibition does not extend to the contract, but to the instrument which is the evidence of it. If the legislature had intended to prohibit all donations except those by public act, it must be presumed they would have said so, and would not have limited it to acts which contain them. A benefit disguised under the form of an onerous contract, is an indirect donation, and is not contained in the act.” Article 1523 of .the new Code, is not subject to this technical construction. It declares .that “ an act shall be passed before a notary public and two witnesses, of every donation inter vivos.” This .donation was not passed before a notary and two witnesses; it is therefore null and void.
But this article has been already adjudicated upon. In Flores v. Lemée, adm.’r, 16 La. 273, the court says a donation cannot be validly made in any other form but that pointed .out by articles 1523 et seq. under tho penalty of nullity.
The question came up more directly in Britain v. Richardson, 3 Rob. 68. The question was, whether a noto for $4,000, executed for an inconsiderable consideration, could stand asadisguised donation mortis causa. Tho court says, “ an instrument, the real object of which was a disposition mortis causa, if executed without the formalities required by law to give it validity as such, can have no effect.” The court further says that, the same rule is applicable to donations inter vivos, and that “ all donations inter vivos, must bo passed before a notary and two witnesses.” They also notice the case of Trahan v. McManus, and note the difference between the old and new Codes on this point.
In conclusion, it may be proper to remark, that this last point was not made in the argument, because it was supposed the liability of the defendant to collation, would not be disputed. Indeed, defendant’s answer admits the liability to a certain extent. It is further respectfully urged, that if the court does not feel authorizod, under the pleadings, to annul the donation, it will so mudify the judgment as to dismiss our bill without prejudice, and ¡reserve .to us tho right .to attack the donation in a moro formal manner.
Rehearing refused.