Scully v. Murray

• Decision Date: 31 March 1864
• Citation: 34 Mo. 420
• Parties: TERRENCE SCULLY, Respondent, v. ANDREW MURRAY, Appellant.
• Court: Missouri Supreme Court

34 Mo. 420

TERRENCE SCULLY, Respondent,

v.ANDREW MURRAY, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from Law Commissioner's Court.

Hume, and Davis & Evans, for appellant.

I. The evidence showed that the entry was under a parol agreement for a written lease for a term of years, which was often demanded by the defendant, and as often refused by the plaintiff. (Anderson v. Prindle, 23 Wend. 616; Tay. Land. & Ten. § 60.)

A. M. & S. H. Gardner, for respondent.

I. The contract proven on the trial was a verbal renting for a term of years; this created a tenancy from year to year and not from month to month.

The case at bar is exactly parallel with the case of Kerr v. Clark, 19 Mo. 132. II. Defendant having occupied the premises in question a year and ten months under a verbal lease for six years, became a tenant from year to year; and to terminate his tenancy he should have given notice, in writing, of his intention so to do three months next before the end of the year. (R. C. 1855, p. 1012, § 12.)

BATES, Judge, delivered the opinion of the court.

This suit was brought to recover the rent of a house for one month. Plaintiff, by parol, rented a house to defendant for six years, at a rent payable monthly. This lease being followed by occupancy and the payment of rent, though declared by the statute of frauds to create only a tenancy at will, has the effect of creating a tenancy from year to year. (Kerr v. Clark, 19 Mo. 132; Tay. Land. & Ten. § 70.)

The defendant left the house and tendered the key to the plaintiff, which he refused; and this suit is for the rent for one month after the defendant had left the house. The defendant gave evidence tending to prove that he entered into possession under a verbal contract for a written lease, and that the plaintiff refused to execute the lease, and the defendant asked the following instruction, which was refused. “If Murray entered into possession of the premises under a verbal contract for a written lease for six years, the rent to be paid monthly, and Scully refused to execute the written lease, and Murray continued in possession, paying rent from month to month, a tenancy from month to month was thereby created commencing from the time of entry, and Murray had a right to leave at the end of any month without giving written notice of said intention.”

It is not perceived how the promise to give a written lease, and the breach of that promise, can alter the relations of the parties in respect to the...