Robb v. San Antonio St. Ry.
| Decision Date | 01 December 1891 |
| Citation | 18 S.W. 707 |
| Parties | ROBB v. SAN ANTONIO ST. RY. |
| Court | Texas Supreme Court |
Action by Mary J. Robb against the San Antonio Street Railway for rent. Plaintiff appeals from a judgment for defendant sustaining a demurrer to the petition. Reversed.
Tarleton & Keller, for plaintiff in error.
Mrs. Mary J. Robb filed her petition in the district court of Bexar county on October 29, 1889, alleging the necessary jurisdictional facts, and, further, that "the defendant, the San Antonio Street Railway Company, occupied, by permission of plaintiff as her tenant, from the 1st day of February, 1884, until the 1st day of September, A. D. 1889, the following real estate, to-wit: The east half of a certain lot or parcel of land situated in said county, and in the new portion of the city of San Antonio, and more particularly described," etc., giving a full description of the same. It was also averred "that the use of the said premises for said period was reasonably worth the sum of $1,675; that the defendant has not paid said amount, or any part thereof, although frequently requested," etc. To this petition, on the 2d day of December, 1889, defendant appeared, and filed a general and two special exceptions, and an answer to the merits. The grounds of the special exceptions were — First. That "it appeared upon the face of said petition that there was no promise or agreement upon which plaintiff's action is brought, nor any memorandum thereof in writing, and signed by the defendant thereto lawfully authorized, and that the same appears to have been for the lease of real estate for a longer term than one year; wherefore the same appears upon the face of said petition to be within the statute of frauds, and that the plaintiff cannot recover herein by reason thereof." Second. "That it appeared upon the face of the petition that plaintiff's claim is not evidenced by any instrument in writing, and that plaintiff's right of action, if any she has, accrued more than two years prior to the institution of this suit, and is barred by the statute of limitation of two years, which is here pleaded by way of special exception, as appearing upon the face of plaintiff's pleading." On March 29, A. D. 1890, the above exceptions were presented to the court, and were by the court sustained, and, plaintiff refusing to amend, final judgment was rendered for defendant, the said San Antonio Street-Railway Company, to which plaintiff excepted. The cause is before us on writ of error, presented by the plaintiff, Mrs. Mary J. Robb.
The ruling of the court sustaining the special exceptions to the petition is complained of under the first assignment of error. The exception assailed the petition upon the theory that it showed upon its face that the action is founded on a lease of real estate for a longer term than one year, and there was no promise or agreement upon which the action is predicated, or any written memorandum thereof signed by the defendant or its authority. The legal effect of the exception is that the statute of frauds interposed a barrier to plaintiff's recovery, because the lease or contract it sued on, showing that it was not to be performed within a year, is not sustained by a reference to the petition. The allegation of a tenancy at will does not reveal in itself the fact that such tenancy was by parol or in writing. Nor does the petition disclose a verbal lease of or contract as to real estate, upon which the action is brought, making it obnoxious to the statute of frauds, because such lease is for a longer term than one year. It is only where the lease or contract alleged shows, upon its face, that it is for a longer term than one year, or that the performance thereof was not to be within a year, that the defect would exist which brings the action within the statute. To make the statute operate, it must appear that the lease extends for a longer period than one year, and that the agreement is one necessarily not to be performed within a year. It does not apply if either of these contingencies may happen. It is obvious that the application of these rules will not operate to put the case stated in the petition within the statute. The averment is that "the defendant occupied [the premises] by permission of the plaintiff as her tenant;" the legal effect of which was to create a tenancy by will. "A tenant at will is said to be one who enters into the possession of the land, etc., of another lawfully, but for no definite term or purpose, and whose possession is subject to the determination of the landlord at any time he sees fit to put an end to it." Either...
To continue reading
Request your trial
-
Texas Pacific Coal & Oil Co. v. Hamil
...parol contract to convey real estate, but it forbids proof of the contract and thus defeats its specific enforcement. Robb v. S. A. St. Ry. Co., 82 Tex. 392, 18 S. W. 707; Simpson v. Green (Tex. Com. App.) 231 S. W. As shown by the findings, the improvements placed on the land by John W. Ha......
-
Wingart v. Baxter
...v. U. S., 95 U. S. 539, 24 L. Ed. 518; Anson Contr. (2d Amer. Ed.) p. 365; 27 C. J. p. 362, § 440, note (a); Robb v. San Antonio Street Railway Co., 82 Tex. 392, 18 S. W. 707; Ray v. Young, 13 Tex. 550; Raycraft v. Johnston, 41 Tex. Civ. App. 466, 93 S. W. 237; Sprague v. Haines, 68 Tex. 21......
-
American Surety Co. of New York v. Bay City Cattle Co.
...Such an arrangement was in legal effect not different from a tenancy at will. Wood's Land. & Ten. §§ 14-38; Robb v. San Antonio Street Ry. Co., 82 Tex. 392, 18 S. W. 707; Lea v. Hernandez, 10 Tex. Beauchamp v. Runnels, 35 Tex. Civ. App. 212, 79 S. W. 1105; Hill v. Hunter (Austin Court of Ci......
-
Simpson v. Green
...its legality, the enforcement of which is only suspended by the statute until its provisions are satisfied. Robb v. San Antonio St. Ry. Co., 82 Tex. 392, 395, 396, 18 S. W. 707; Bringhurst v. Texas Co., 39 Tex. Civ. App. 500, 87 S. W. 893, 896 (writ refused); Edwards v. Old Settlers' Associ......