
    Daniel E. Huger, Jr., vs. Mrs. Dibble.
    One occupying and paying rent under an agreement in writing for the renewal of a lease for three or more years, is a tenant from year to year, and not a tenant according to the terms of the agreement to renew.
    IN THE CITY COURT OF CHARLESTON, MAY TERM, 1854.
    The report of his Honor, the Recorder, is as follows:
    This was an action for use and occupation, to recover the balance of two quarters’ rent alleged to be due by defendant to plaintiff under the following circumstances :
    “ Plaintiff had executed a written lease of the locus in quo to defendant, for one year, from the 1st of October, 1850, to the 1st of October, 1851, at nine hundred dollars per annum, payable quarterly, with privilege to the defendant of renewing the lease, on the same terms, for three or more years. The lease, among other covenants, contained one that defendant should give plaintiff three months’ previous notice of her intention to vacate the premises. Without any thing else, said or done, defendant continued to occupy the premises, after the expiration of the first year, and to pay rent on the terms of the original lease, and plaintiff to receive the same, until June, 1853, when plaintiff gave written notice to defendant that,, after the termination of the then current year, she must pay rent at the rate of twelve hundred dollars per annum, payable quarterly. Thereupon defendant gave notice that she claimed or elected to occupy the premises, for at least three additional years, according to the terms of the original lease, and refused to pay or to recognize any liability to pay the increased rent demanded. The action was brought for one hundred and fifty dollars, the balance of two quarter’s rent (i. e. seventy-five dollars each) due for tbe quarters ending on tbe 1st of January and tbe 1st of April, 1854, at tbe rent of twelve hundred dollars per annum, or three hundred dollars per quarter, with interest on tbe balance of each quarter as it became due, tbe rent originally reserved having been paid and received by consent of parties without prejudice.
    “ Tbe question involved appeared to me to be a question of law, upon an admitted stafce of facts, and I thought was so considered and treated by tbe counsel on both sides. In this submission of tbe case, under my instructions to tbe jury, I charged them substantially (I believe) as represented in the defendant’s grounds of appeal. — That it appeared to my mind there were no circumstances proved in tbe case, upon which the jury would be authorized to imply a renewal of the original lease for another term of three years ; that the defendant was. to be regarded, after the expiration of the original term, or one year, as holding over simply from year to year, on the terms of the original lease, as to the amount and time of payment of the stipulated rent, and not for a renewed term of three years. That the plaintiff therefore had a right to terminate the . tenancy at the expiration of the third year, under the notice given as above stated, and as a matter of law was entitled to recover the balance of the increased rent, with interest; and the jury rendered a verdict for the plaintiff accordingly.”
    The defendant appealed on the ground:
    1. That his Honor erred in charging that there was no renewal, express or implied, on the original lease for a prolonged term.
    2. That his Honor erred in charging that the plaintiff, as a matter of law, was entitled to recover increased rent; whereas he should have left it to the jury to decide as a question of fact, or a mixed question of law and fact, whether the original lease was renewed or not.
    
      ‘ 3. That the verdict was in the foregoing, and other respects, contrary to law and evidence.
    
      Yeadon, for appellant;
    Mitchell, contra.'
   The Opinion of the Court was delivered by

WARDLAW, J.

A covenant for the renewal of a lease is like an executory agreement for an original lease. It is not a present demise, conferring an interesse termini, but is a stipulation for a demise to be made, giving a right to compel specific performance. If premises be occupied under it, and rent be paid, a tenancy from year to year will be implied, but our Act of 1817 (7 Stat. 67 § 3) as well as the English Common Law^ forbids that under such parol contract as is implied in cases of tenancy from year to year, the tenant should have a right of possession for a longer term than twelve months.

It was the duty of the defendant to have signified her option concerning the renewal at or before the expiration of the original lease. It has been argued that her giving no notice of an intention to quit, and her payment of rent for the second year, amount to the expression of her option and thus raise the implication of a renewed lease for three years, commencing October 1st, 1851. These are the very circumstances which plainly raise the familiar implications of a tenancy from year to year : even if they could be considered to express the option of the defendant, and a lease for three years could be made without writing, they could not supply that positive demise by the plaintiff, which the option would have given a right to, but would not have created. The circumstances are however strongly viewed in favor of the defendant, when they are said to-be even equivalent to the expression of the defendant’s option. If three months before the end of the second year, rents had fallen, and the defendant had given notice of her intention to quit, it would not have been possible for the plaintiff to recover.from her the rent of the next two years upon the allegation that the lease had been renewed, when it would have appeared that the lease never had been in fact renewed, and the evidence of defendant’s assent to the renewal would have been only such evidence as shewed her to be a tenant from year to year.

This Court is of opinion that the Recorder’s view of the law was correct, and that the jury would not have been authorized in finding the verdict which the defendant desired.

The motion is dismissed.

O’Neall, WitheRS, Whither, (Jloyer, and Muhro, JJ,s concurred.

Motion dismissed,  