Same Case — On a Re-hearing.
Land, J.The plaintiff’s counsel is in error in supposing that a married woman, under the common law, whose estate is secured to her separate use by virtue of an ante-nuptial agreement, has the same capacity to buy property and' contract abligations, that a married woman, who is separated in property from her husband, has under the law of Louisiana.
So absolute is the incapacity of a married woman, at common law, to contract, that it has been held, in England, that she is not liable on her contracts, although she live apart from her husband in a state of adultery, and there exist a valid divorce a mensa et thoro. Ohitty on Contracts, p. 40.
And even under the Mississippi statutes, changing the common law, and securing to married women the ownership and enjoyment of their property, free from the control, debts and liabilities of their husbands, it has been held that the incapacity of the wife to contract still exists, in all cases in which it has not been specially removed by statute. Davis v. Foy, 7 S. & M. Mi. R. p. 04.
Whether the gift of the slaves in question was, by deed or parol, is immaterial to the decision of the.question in this case. It, however, may be stated that, at common law, all contracts not under seal, whether verbal or written, are contracts by parol; and that as the act of gift of the slaves, although in writing, has no seal on it, nor even a scroll as a substitute for a seal, it was, as stated in the opinion of the court, a gift by parol and not by deed. Ohitty on Contracts, p. 2 ; 4 Kent’s Commentaries, p. 452.
The grandmother of the plaintiffs never had any title in law to the slaves, which she could convey by gift or otherwise.