interest by assignment, she recovered the half interest adjudged to her.

The defendant, Cauble, under his chain of title, claimed that Surginer, Wilhoit, and himself were all innocent purchasers for value without notice of the unrecorded deed from D. B. Cauble to De Chaumes, but upon evidence tending to show notice to each of them, the jury found against them on this issue and this finding is not attacked.

Cauble also claimed that, under the gift from D. B. Cauble to Mrs. Kirkpatrick, accompanied by possession and improvement, such title vested in her, as her separate property and homestead, as could not be conveyed by the donor, nor by the donee, except by the joint deed of herself and husband properly acknowledged, and that this title vested in 92 him through the subsequent deed of Kirkpatrick and wife to Surginer, and entitled him to recover, without regard to other issues, and he requested a charge embodying this contention which the court refused to give. The court of civil appeals held that Mrs. Kirkpatrick was estopped by the transaction between herself and her father and De Chaumes, and that defendant could not assert her right under the gift; and it was upon assignments calling in question these rulings that this writ of error was granted.

The evidence was sufficient to justify a finding that, upon faith of the gift from her father, Mrs. Kirkpatrick and her husband entered into possession and made improvements of such valuable and permanent character as entitled her to a specific performance at the hands of her father. Everything essential to take the oral gift out of the statute of frauds and to authorize the enforcement of it in equity having transpired, the equitable title to the property was thereby vested in the donee in her separate right. This proposition has long been settled by the decisions of this court: Hendricks v. Snediker, 30 Tex. 296; Murphy v. Stell, 43 Tex. 123; Wells v. Davis, 77 Tex. 636, 14 S. W. 237. Parol gifts thus executed are unquestionably placed by our decisions upon the same footing as parol sales of land, and where there has been such performance by possession and improvement as to meet the requirements of the decisions, the right which vests in a donee is of the same character as that which vests in a vendee, viz., the equitable title. Of such a right acquired by a vendee it was said in Harold v. Sumner, 78 Tex. 583, 14 S. W. 995: "Under this ɛtate of facts we think it quite clear that H. Chowning acquired

Several of the

a good title to the lots from T. Chowning." decisions recognize the right of the holder of such a title to recover or defend upon it in the action of trespass to try title either against the vendor or other persons. The estate which is thus created is, in equity, one both of freehold and inheritance. It is provided by article 624 of the Revised Statutes: "No estate of inheritance or freehold" shall be conveyed unless by writing; and by article 635, that "the husband and wife shall join in the conveyance of real estate, the separate property of the wife," and that the deed shall be separately acknowledged by the wife. From this it seems evident that Mrs. Kirkpatrick acquired an estate in the land which could not be conveyed by D. B. Cauble, and which could only be legally conveyed by herself and her husband. It is urged that because her right was not a legal but only an equitable one, she could legally authorize the conveyance of it by her father by deed passing his legal title. But no such distinction between conveyances of legal and equitable estates is admissible under our statutes: Masterson v. Little, 75 Tex. 697, 13 S. W. 154; Sprague v. Haines, 68 Tex. 217, 4 S. W. 371. Since her father could not by his mere deed pass her title, a conveyance by her was necessary; and that conveyance could not consist of her parol agreement either that she would or that her father might convey, for the reason that the statute requires a particular kind of conveyance to devest her separate estate. Nor is it true that the defendant could not assert that the transaction 93 was inoperative upon the title. His position is that, since this title did not pass to De Chaumes but remained in Mrs. Kirkpatrick, Surginer regularly acquired it from her and defendant acquired it from Surginer. He is not a stranger to the equity asserted against the legal title, but connects himself with it by the deed from the original holder of it: Masterson v. Little, 75 Tex. 697, 13 S. W. 154; Harold v. Sumner, 78 Tex. 582, 14 S. W. 995; Murphy v. Stell, 43 Tex. 123; Secrest v. Jones, 21 Tex. 132. An attempt was made in the argument to show that the quitclaim deed of the Kirkpatricks to Surginer was intended to convey only such interest as the grantors had acquired through their trade with Mrs. De Chaumesunder which they re-entered. But the record only states the quitclaim deed as covering the one hundred acres, which we understand to mean that the grantors conveyed such interest as they had in the tract. The deed therefore operated upon any title of which they were possessed. Evidence was admis

sible to show any title which was vested in the grantors at the date of their deed, and the effect of the deed upon such title could not be limited by parol evidence: Ragsdale v. Mays, 65 Tex. 257.

The facts stated do not show an estoppel against Mrs. Kirkpatrick. The elements essential to the estoppel of a married woman have been so often discussed and stated in the decisions of this court as to render elaboration unnecessary. The evidence shows no misrepresentation, concealment or deception of any character on the part of the feme covert; nor does it tend to show that De Chaumes was ignorant of the true state of the facts and the character of her right. It exhibits only a mistaken attempt to obtain the title of a married woman by an ineffectual method. To hold that she is estopped by her bare parol agreement to pass away her title, even for a consideration received, would be to authorize a mode of conveyance forbidden by the statute by the mere substitution of terms: Berry v. Donley, 26 Tex. 738; Fitzgerald v. Turner, 43 Tex. 79; MeLaren v. Jones, 89 Tex. 131, 33 S. W. 849; Steed v. Petty, 65 Tex. 490.

Plaintiff in error requested a charge explaining to the jury the essentials of a valid conveyance by Mrs. Williams and her husband and the effect upon questions of limitation of a finding that a sufficient conveyance had not been made by them to pass any interest. We are of the opinion that the evidence which we have recited is too uncertain to establish a conveyance of any particular character, and no question should have been submitted to the jury upon the assumption that either party might have acquired rights through a conveyance. Neither side produced a deed, nor gave any reason why it was not done; and neither had the right to have the jury to indulge in mere conjecture as to the true nature of the transaction. The assignment upon the refusal of the special charge only indirectly raises a question of some merit. Such title as De Chaumes obtained from Cauble was community property of himself and the wife who survived him. This suit was instituted by his children before the death of the survivor. When they sued they only had title to the interest inherited from their father, or such portions of it as defendants had not acquired by limitation. Had limitation then been 94 running against Mrs. Williams it would not have been stopped by the suit of her cotenants asserting no right in her: Stovall v. Carmichael, 52 "Tex. 383. Limitation was not running against her because of

her coverture, but she died pending suit, and her interest descended to her children, who were parties therein. Their disabilities could not be tacked to hers, but limitation, unless prevented by the pendency of the action, commenced to run against this interest upon her death. The record has probably not. been made up with reference to this question, and it has not been argued. As we have concluded to remand the case for a new trial, we merely suggest it to avoid misapprehension,. without undertaking to definitely determine the rights depending on it.

Reversed and remanded.

A Parol Agreement to Convey land will, under some circumstances, support a suit for specific performance: Butler v. Thompson, 45 W. Va. 660, 72 Am. St. Rep. 838, 31 S. E. 960; Lothrop v. Marble, 12 S. Dak. 511, 76 Am. St. Rep. 626, 81 N. W. 885; Svanburg v. Fosseen, 75 Minn. 350, 74 Am. St. Rep. 490, 78 N. W. 4; Emmel v. Hayes, 102 Mo. 186, 22 Am. St. Rep. 769, 14 S. W. 209. But the agreement must be definite and certain: Crosdale v. Lanigan, 129 N. Y. 604, 25 Am. St. Rep. 551, 29 N. E. 824.

The Joinder of Husband and Wife in the conveyance of her separate estate is discussed in the note to Peters v. Byrns, ante, pp. 584592. It is held in Turner v. Shaw, 96 Mo. 22, 9 Am. St. Rep. 319,. 8 S. W. 897, that a wife may convey her separate equitable estate without her husband joining in the conveyance.

Estoppel Against Married Women is discussed in the monographic note to Trimble v. State, 57 Am. St. Rep. 169-185.

HOUSTON EAST AND WEST TEXAS RAILWAY COM-PANY v. DE WALT.

[96 Tex. 121, 70 S. W. 531.]

MASTER AND SERVANT-Duty of Obedience.-It is not true that employés of a railway corporation are bound under all circumstances to obey the orders of their superiors. Obedience to an: order may involve personal risk so great and obvious that no prudent man should take it. A master or his representative has right to give, nor is the servant bound to obey, such an order. (p. 882.)

no.

A MASTER ORDERING HIS SERVANT to do Extrahazard-ous Work is not necessarily answerable to the servant for injuries received from his obedience. If the work involves risk so great and obvious that no prudent man should undertake it, a servant who takes the risk of doing it will not be heard to complain in the courts. (p. 882.)

JURY TRIAL-Error in One Instruction, When not Cured by Others. An instruction that a servant of a railway must obey the

orders of his superior, and if the work required is extrahazardous, the company is responsible for the master's orders being obeyed, is erroneous, and the error is not cured nor rendered harmless by other instructions correctly defining negligence and contributory negli gence and informing the jury that the plaintiff cannot recover if guilty of contributory negligence. (p. 883.)

JURY TRIAL.-Where Instructions are in Such Conflict as to Confuse the Jury, the judgment should be reversed. (p. 883.)

PLEADING INCONSISTENT DEFENSES.-The defendant has the right to plead inconsistent defenses. If in one part of his answer he denies a fact and in another part alleges its existence, the answer cannot be taken as an admission of such fact. (p. 883.)

Action to recover damages for personal injuries suffered by the plaintiff while in the service of the defendant railway corporation. Among his duties were those of sealing and cleating cars. He was ordered by the defendant's agent to seal a car then on the main track, and he sealed the car and got on the end of it to cleat a window, but, before completing this task, the train crew, without warning, ran an engine and came down on the main line, striking the car on which the plaintiff was at work, and causing him to fall and receive injuries. The putting of an unsealed car in the train was against the rules. The agent's testimony was to the effect that when he told the plaintiff to seal the car it was on a sidetrack. Whether the car was on the main or side track when the direction was given to the plaintiff, whether he was expected to work with it while on the main track, and if so, whether his so doing was not so extrahazardous that he should have declined to obey the orders, were subjects of contention between the parties.

The judge, in his instructions to the jury, defined negligence, contributory negligence, and ordinary care, and further instructed the jury as follows:

"You are charged that if J. E. Burton, the defendant's station agent at Livingston, ordered the plaintiff to go and seal and cleat (or do either) the car while on the sidetrack near the depot at Livingston, and the plaintiff, in obedience to Burton's order, went upon the sidetrack and performed a part of the work ordered to be done, but had not finished the work when the car was moved upon the main line, and after the said car was moved on to the main line the plaintiff resumed his work on said car and was engaged in said work when the engine and car or cars attached to it were backed up against the car on which the plaintiff was engaged in his work, and the plaintiff was thereby knocked against the cars and thrown to the ground and injured as alleged by him, and further you find from