112 S.W. 161
Ark.
1908
Hart, J.

(after stating the facts). The evidence in this case shows that the decree was rendered in vacation. The chancellor so found, but was of the opinion that such fact could only be shown by the record in the cause, and therefore excluded from his consideration all the evidence contained in the deposition of witnesses showing or tending to show that the decree was actually rendered in vacation. In this there was error. The precise question was otherwise determined in the case of Biffle v. Jackson, 71 Ark. 226. The court said: “That the original decree was rendered in vacation is abundantly established b)- the testimony both of witnesses and the record, since it is shown that the depositions upon which the decree is based were taken after the adjournment of the court at which the decree purports to have been rendered.”

It was held in the same case and in the later case of Boynton v. Ashabranner, 75 Ark. 415, that a decree in chancery rendered in vacation, though entered on the judgment record in a blank space left for the purpose, is a nullity. This is the general rule, in the absence of statutory provisions providing for the rendition of decrees in vacation.

If the fact of its rendition in vacation could not be shown bj testimony, and could only be shown by the record, we would have the anomolous condition, in cases like the present one, of a decree being a nullity and of the parties affected by it being denied the right to establish that fact.

In the case of Bobo v. State, 40 Ark. 224; Chief Justice Engrish said: “Courts have a continuing power over their records not affected by lapse of time. Should the record in any case be lost or destroyed, the court whose record it was possesses the undoubted power, at any time afterwards, to make a new record. In doing this it must seek information by the aid of such evidence as may be within reach tending to show the nature and existence of that which it is asked to establish. There is no reason why the same rule should not apply when, instead of being lost, the record was never made up, or was so made up as to express a different judgment than the one pronounced by the court. Plence the general rule that a record- may be amended, not only by the judge’s notes, but also by other satisfactory evidence.”

.This rule has been followed ever since by this court, and was reiterated in the case of Ward v. Magness, 75 Ark. 12.

While the consideration of public policy which requires that a record shall be taken as importing verity yield to equities which require it to speak the truth, it does so only when the party seeking the relief is not guilty of laches. State v. Hill, 50 Ark. 461. Mr. Freeman, in his work on Judgments, § 102, says that the rule will be strictly applied, and that any laches shown against the moving party will prove fatal to his relief. This court has held that the writ of certiorari will be refused when the party seeking it fails to show that he has proceeded with due expedition after discovering that it was necessary to resort to it. Black v. Brinkley, 54 Ark. 372; Lyons v. Green, 68 Ark. 205. The reason of the rule is based upon grounds of public policy, and the doctrine of laches is grounded upon the same principle. Its aim is the discouragement, for the peace and repose of society, of stale and antiquated demands. 18 Am. & Eng. Ency. of Law, p. 98.

The general rule of the doctrine of laches, as stated by Mr. Justice Harlan, has been quoted with approval by this court in the casé of Sturdivant v. Cook, 81 Ark. 284. He said: “But it is now well settled that, independently of any limitation prescribed for the guidance of courts of law, equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and where injustice would be done in the particular case by granting the relief asked.”

Appellants contend that the cases of Earle Improvement Co. v. Chatfield, 84 Ark. 296, and of Updegraff v. Marked Tree Lumber Co., 83 Ark. 160, are decisive-of the present case. In the former case, the following language is used: “In the absence of some intervening equity calling for application of the doctrine of laches, equity by analogy follows the law, and will not divest the owner of title by lapse of time shorter than the statutory period of limitation.” In the Updegraff case the court said: “The supervening equities referred to in that case (meaning the Earle case) mean some element of estoppel aside from the mere lapse of time, payment of taxes and enhancement in value.” It will be observed that both these cases were suits to quiet title; that the lands were unimproved and unenclosed, and therefore under the statute deemed to be in the possession of the parties who paid the taxes, and against whom the doctrine of laches was sought to be invoked. There was no element of estoppel, aside from the mere lapse of time, payment of taxes and enhancement in value of the land.

The rule as applied to facts similar-to those in the present case is aptly .stated in the case of Galliher v. Cadwell, 145 U. S. 368, and approved 'by this court in the case of Rhodes v. Cissel, 82 Ark. 371. It is as follows: “The cases are many in which this defense (laches) has been invoked and considered. It is true that by reason of their differences of fact no one case becomes an exact precedent for another, yet a uniform principle pervades them all. They proceed on the assumption that the party to whom laches is imputed has knowledge of his rights and an ample opportunity to assert them in the proper forum, that by reason of his delay the adverse party has good reason to believe that the alleged rights are worthless or have been abandoned, and that because of the changes in conditions or relations during this period of delay it would be an injustice to the latter to permit him to now assert them.”

“Now, the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. When it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or when, by his conduct and neglect, he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted; in either of these cases lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, 'the validity of that defense must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice, in. taking the one course or the other, so far as relates to the remedy.” Hall v. Otterson, 52 N. J. Eq. 535.

In the present case, the parties invoking the doctrine of laches, under and by virtue of the decree of foreclosure now sought to be annulled, became the purchasers of the lands, and were placed in possession of them. They have sold large quantities of timber from them, changed the fences on the cleared lands, and in all respects used them as owners by purchase under a valid foreclosure decree. All these facts were known to appellants. George Jackson, Sr., employed for appellants counsel to represent them in the foreclosure proceeding. He knew that their counsl agreed to a vacation decree. He was advised that this decree could be annulled, but would be valid unless appellants moved in apt time to set it aside. No effort was made to oppose the confirmation under the sale or the entry into possession by the purchasers by virtue of the deeds executed to them pursuant to the decree. They knew the lands were being sold off from time to time; for the knowledge of George Jackson, Sr., must be imputed to .them, he being their agent in all respects conterning the lands. They made no effort to settle off the mortgage debt or in any way to assert any rights to the lands. They did not move to set aside the decree until nearly five years after'it was rendered. They do not claim to have been misled by any act of the parties to the suit, no excuse is given for the delay, which may be attributable to their own culpable negligence.

These facts render appellants guilty of laches in not sooner moving to annul the foreclosure decree, and make it inequitable to divest the numerous purchasers of rights which they acquired under what purported on its face to be a valid decree, and which they were led to believe appellants had acquiesced in by their delay and negligence in moving to have if annulled and set aside.

Appellees insist that a husband does not have curtesy in the equity of redemption of the lands of his wife. In this they are in error. It is now fully settled in equity that .the husband shall have curtesy of trust as well as of legal estates and of an equity of redemption. Davis v. Mason, 1 Peters (U. S.) 503; Hart v. Case, 46 Conn. 212; Robinson v. Lakeman, 28 Mo. App. 135; DeCamp v. Crane, 19 N. J. Eq. 166; 2 Jones on Mortgages, § 1067. “Where a woman, having issue, dies possessed of an equitable estate in land, of which her husband holds the legal title, the husband is entitled to eurtésy therein.” Ogden v. Ogden, 60 Ark. 70.

The decree is affirmed for the reasons given in this opinion.