Betts v. Betts , 220 S.W. 575 ( 1920 )

Two contentions are presented by the assignments; the first being that the trial court erred when he overruled appellant's exception to the part of appellees' answer setting up that they had leased the land of appellant, and the second being that said court erred when he overruled appellant's motion to strike out all the testimony admitted in support of said part of said answer.

The ground of the exception was that it appeared from the allegations in the answer that the lease contract therein set up was within the provision of the statute of frauds (article 3965, Vernon's Statutes) that no action shall be brought upon any contract for the lease of real estate for a longer term than one year unless such contract is in writing, and it did not appear from said allegations that the contract so set up was in writing. The action of the trial court in overruling the exception has ample support in the decisions of the courts of this state. King v. Murray, 135 S.W. 255; Robb v. Ry. Co., 82 Tex. 392, 18 S.W. 707; Carson v. McCord-Collins Co., 37 Tex. Civ. App. 540, 84 S.W. 391; Land Co. v. Dooley, 33 Tex. Civ. App. 636, 77 S.W. 1030; Day v. Dalziel, 32 S.W. 377; Graham v. Kesseler, 192 S.W. 299. In the case first cited the court said:

"Nothing is better settled as a rule of pleading than that, in declaring upon a contract required by the statute of frauds to be in writing, it is not essential to the validity of the pleading that it should aver that such contract was in writing."

The ground upon which the trial court was asked to strike out the testimony he had admitted with reference to the lease contract was that it showed the contract to be a verbal one which was not to be performed within a year, and therefore within the provision of the statute of frauds above referred to. The testimony on behalf of appellees was that the lease to them by appellant was for the term of her life. If it was, then, obviously, the lease by the terms of the contract was not unconditionally for a longer time than one year, for appellant might have died within the year. The rule seems to be that when the lease may be for a longer or shorter term than one year, according to whether a contingency which is to end it happens within the year or not, it is not to be construed as within the statute. Tipton v. Tipton,55 Tex. Civ. App. 192, 118 S.W. 842; Robb v. Railway Co., 82 Tex. 392,18 S.W. 707. In the case last cited the court said:

"It is only where the lease or contract 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 [within a year]."

The judgment is affirmed.