Bank of Arlington v. Sasser ( 1936 )

Atkinson and Gilbert, JJ.

While we concur in the result reached, we are unable to concur in the reason given for the ruling in the second headnote. It is there stated that because of a certain stipulation agreed upon by the parties, Code § 85-408 “does not apply.” That section is as follows: “Possession by the husband with the wife is presumptively his possession, but it may be rebutted.” We think that the court is authorized to construe the stipulation agreed upon between the parties, that the wife “has been in continuous possession of the premises in dispute,” etc., to mean that the wife was in exclusive possession, that is, that the husband was not in possession at the time the bank acquired its security deed. Thus construed, the evidence authorized a finding that the presumption that the possession of the husband with the wife is his possession was successfully rebutted, and the court was authorized to find that the possession was exclusively in the wife.