"If you find from the evidence that the plaintiff Duff, made an assault upon the defendant Downey, with a dangerous weapon and that Downey in good faith believed that it was necessary for him to strike Duff in order to prevent Duff from striking him with the weapon (to avoid the infliction of bodily harm upon himself) and that Downey used no more force than was necessary (as the situation appeared to the defendant under the circumstances) then you should find for the defendant."

There can be no error in either of these modifications for the first tells the jury one may strike another with a weapon only to avoid the infliction of bodily harm. This is the foundation of the law of self-defense and unless there is such danger there can be no right to inflict any physical injury upon another. And the second modification tells the jury that this can not be done unless the situation of the parties is such that it reasonably appears to be necessary to the defendant under the circumstances.

The court of its own motion gave instructions numbered 4 and 5 as follows:

No. 4. "You are instructed that an assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another, and, if you find from a preponderance of the evidence that at the time defendant struck plaintiff, plaintiff was committing an assault upon him, the defendant was justified in using such force as appeared to him reasonably necessary, acting as a prudent person would under similar circumstances, to resist the assault of plaintiff, and to prevent any renewal of such assault, if such renewal could be reasonably apprehended."

No. 5. "You are instructed that if you find from a preponderance of the evidence that at the time defendant struck plaintiff, plaintiff was attempting to strike defendant, or if it reasonably appeared to defendant, viewed from his standpoint alone, by words or acts of plaintiff that plaintiff was about to make an unlawful attack upon him, in that event defendant had a right to use whatever means was necessary to protect himself from serious bodily injury, and this is the case although it subsequently appeared that defendant used

more force than was actually necessary to protect himself from serious bodily harm."

These instructions fairly present the law of self-defense, and state it as favorably to the defendant as he had any right to demand. The appellant specially complains against the modification of his instruction No. 6 as above shown and to the words "acting as a prudent person would under similar circumstances," in the court's fourth instruction, his contention being that "the right to use such force as reasonably appears necessary to the defendant is the test and not a prudent person." This question has been fully considered and thoroughly discussed in the prior decisions of this court and the rule is well settled that while the jury must view the transaction from the defendant's standpoint, that view must be one of good faith and free from fault or carelessness on defendant's part. A man can not become frenzied from any of the passions that ordinarily move men to acts of violence and then require of the jury that they imagine their perception and judgment to be so befogged that temporarily their reasoning faculties do not control their actions. Even a great passion, apparently irresistible, does not justify one to inflict a wound which results in death, nor would such passion reduce the grade of the homicide, if death ensued, unless it was caused by a provocation apparently sufficient to cause this passion, and both this passion and provocation do not excuse, they merely reduce the degree of the homicide. These instructions with their modifications, amount to telling the jury that before Downey had the right to fell Duff with a blow of his weapon, he must be free from fault or carelessness in reaching the conclusion that his own safety demanded that action. And this is the true doctrine of self-defense and that announced in the case of Brooks v. State, 85 Ark. 376; Maginnis v. State, 67 Ark. 594.

Affirmed.

1.

2.

3.

JOHNSON v. JOHNSON.

Opinion delivered December 2, 1912.

CONVEYANCE TO DEFRAUD CREDITORS RIGHT OF WIDOW-A widow has no dowable interest in lands bought by her husband, when he takes title in the name of a third party in order to defraud creditors, for the reason that he had no estate of inheritance in the same. (Page 11.)

ADVERSE POSSESSION-DOWER.-But when a husband purchases land and takes title in the name of a third party in order to defraud his creditors, and goes into possession of the land, clearing and cultivating it for a period of six years, and the widow continues in possession two years under section 2704 Kirby's Digest, her possession is in privity with and tacks to that of her husband, giving his heir's title by adverse possession and entitling the wife to have dower and homestead in the same assigned to her. (Page 13)

DOWER AND HOMESTEAD.-RIGHT OF WIDOW-Dower and homestead shall be assigned to the widow only in the house and farm lands which have been enclosed and occupied as a farm. (Page 14.)

Appeal from Lincoln Chancery Court; John M. Elliott, Chancellor; reversed.

STATEMENT BY THE COURT.

The appellant instituted this action in the Lincoln Chancery Court to have homestead and dower assigned to her in certain lands situated in Lincoln County, Arkansas, which she described in her complaint. She alleged that she was the, widow of Jarrett Johnson, who died intestate March 21, 1908; that he left surviving the appellees who were his sole heirs at law; that he was seized of an estate of inheritance in the lands described, having purchased the same on or about the first of November, 1901; that he had the title placed in Aaron Moorman and Mittie Moorman, as trustees; that from the time of his purchase until his death in 1908 Jarrett Johnson lived upon said land, cultivated a portion of it and exercised an exclusive supervision over all of it as his own property; that after the death of Jarrett Johnson, Jarrett Johnson, Jr., and Wm. H. Johnson forcibly took possession of the said lands, holding the same against plaintiff and refusing to account to her for any rents or profits; that she had demanded her dower and homestead but had never received either. She further alleged that Aaron and Mittie Moorman, after the death of Jarrett Johnson, for the purpose of defeating the rights of the

plaintiff to homestead and dower in the lands, conveyed the same to the defendants without any valuable consideration. She prayed that the deed executed by Aaron and Mittie Moor-. man be set aside and cancelled as a fraud upon her rights; that the title to the land be declared in the defendants, subject to the rights of homestead and dower in the plaintiff. She prayed for an accounting of the rents and profits, and that the defendants be restrained from committing waste upon the lands, and that her homestead and dower rights be assigned her. The appellees, in their answer, admitted that the plaintiff was the widow of Jarrett Johnson, their father, at the time of his death. They admitted that they were in possession of the lands, and alleged that they claimed the same as purchasers and not as heirs of Jarrett Johnson. They denied that their father died seized of an estate of inheritance in the lands (describing the same), and denied that the plaintiff, by virtue of her marriage with their father, was entitled to dower and homestead in the lands.

The court dismissed the complaint for want of equity, and the appellant duly prosecutes this appeal.

Asa C. Gracie and W. K. Toney, for appellant.

The evidence in the case is sufficient to establish a resulting trust in the Moormans, and if a trust existed in them, appellant is entitled to dower and homestead. Under the testimony and in view of all facts developed in evidence, the title should be vested in appellees subject to the rights of the widow to homestead and dower. 9 Ark. 518; 11 Ark. 82; 27 Ark. 87; 29 Ark. 612, 630; 44 Ark. 365; 45 Ark. 481; 40 Ark. 62; 48 Ark. 169; 64 Ark. 155; 70 Ark. 145; 98 Ark. 452; 31 Ark. Law Rep. 554; 15 Am. & Eng. Enc. of L. (2 ed.) 1132; 14 Cyc. 909-912, note 23; 26 Ark. 368; 21 Cyc. 508; 40 Ark. 69.

Crawford & Hooker, for appellee.

The evidence is entirely wanting in that fullness and certainty necessary under the rule to establish a resulting trust. 75 Ark. 446; 89 Ark. 182.

A fraudulent conveyance is good as between the parties. If the title to the land in this case was taken in the name of the Moormans for fraudulent purposes, even though the consideration was paid by the deceased, he could never in his

lifetime have invoked the aid of law or equity to secure in himself title to the lands. 11 Ark. 411; 47 Ark. 301; 43 Ark. 84; 52 Ark. 389; Id. 171; 1 L. R. A. (N. S.) 1007. His privies could not maintain suit after his death. 13 L. R. A. (N. S.) 1118. See also 74 Ark. 276; 77 Ark. 60; 19 Ark. 650; 13 Ark. 595.

WOOD, J., (after stating the facts). 1. It could serve no useful purpose to set out the evidence, which is voluminous. It tends to show that Jarrett Johnson, Sr., purchased the land in controversy about the 24th day of November, 1902, and had the title thereto taken in the name of Aaron Moorman and Mittie Moorman. Johnson furnished the purchase money and had the title put in the name of Aaron Moorman and his sister, Mittie Moorman, for the purpose of defrauding his first wife, from whom he was seeking to obtain a divorce, and also for the purpose of defrauding certain creditors who had a judgment against him. Under these circumstances there was no resulting trust in favor of Johnson. Although Johnson furnished the purchase money, as he had the conveyances of the land made to third parties for the purpose of defrauding creditors, he had no estate in the land, legal or equitable, that he could set up.

"A conveyance to defraud creditors is good between the parties and against all persons except creditors of the grantor who are in position to assail it." Bell v. Wilson, 52 Ark. 171. See also, Martin v. Taylor, 52 Ark. 389; Millington v. Hill, 47 Ark. 301.

* * *

In the case of Moore v. Walstein, 74 Ark. 273, the court said: "Before the act of 1895 no one except creditors could set aside a deed to defraud them. It was valid as to all other persons. The act of 1895 made a change of this condition of affairs, to the extent of allowing a fraudulent deed to be set aside for the benefit of the heirs at law. This is the only change made."

We have no statute allowing a fraudulent conveyance of a husband to be set aside for the benefit of the widow so as to preserve her dower in lands so conveyed. In the absence of such statute, the widow has no dowable interest in such lands for the reason that the husband, at the time of his death was not seized of any estate of inheritance, either in law or