delivered a dissenting opinion.
I am unable to concur in the conclusion of my learned associates, chiefly on account of its direct antagonism with repeated rulings of our supreme court, and of this court, -as I understand them. It seems to me that a serious" mistake underlies the whole reasoning of the majority opinion. This consists in treating the present proceeding as a specific action for the collection of rent, the mister of the tenant being a mere incidental adjunct to the remedy. Here is clearly an unauthorized transposition of terms. The leading intent of the landlord’s and tenant’s act is, primarily, a restitution of possession to -the land owner, while the collection of rent in arrear is appended as an incident which, by the express terms of the statute, the landlord may eliminate without prejudice to his recovery of the possession. All the arguments so strongly presented against the denial of a plaintiff’s right to sue for less than he might claim, if he would, and supposed to be illustrated in this case by the plaintiff’s being turned out of court because she sued for two hundred dollars instead of for three hundred dollars, might have a controlling force in any suit for the mere collection of money. But they have not the least application to a controversy about a forfeiture, whose conditions are exactly prescribed by contract or by law, *660and which must fail if any of such conditions be either disregarded or waived.
The landlord’s and tenant’s law of Missouri, and kindred enactments in other states, are handed down, in substance, from the English jurisprudence, and are .the legitimate offspring of the ancient sacredness of landed property. They assume an absolute right in the land owner to a constant enjoyment of his land. If that enjoyment be broken in upon by the failure of a tenant to-perform the stipulations of his lease contract, a summary remedy, denied to other property rights, is provided for its prompt restoration, in the actual re-possession of the land. This remedy does not await the slow and uncertain pursuit of damages for the breach of contract. It at once annuls the contract, and wrests from the defaulting lessee all its prospective privileges, however secured, or supposed so to be. Such a wholesale destructive process is utterly inconsistent with a continuance of the relation of landlord and tenant for a single instant of time, after the event upon which the landlord assumes a forfeiture of the tenancy. Hence the authorities say, that any act of the landlord which implies a continuance of the tenancy with his consent, after the happening of such an event, will be per se a waiver of the forfeiture which that event might otherwise create. ■ Our supreme court says of such a waiver : ‘£ Slight acts are deemed sufficient for this purpose, and any recognition of a tenancy subsisting after the right of entry has accrued and the lessor has notice of the forfeiture, will have the effect of a waiver.” Garnhart v. Finney, 40 Mo. 460. The court here cites 2 Platt on Leases, where it is said, referring to more than twenty authoritative decisions : ££ And as forfeitures, to use the phrase of the books, are odious in law, slight acts on Ms (the lessor’s) part have been deemed sufficient to amount to a waiver. Indeed, it may be stated as a general rule, that any recognition of a tenancy subsisting after the right of entry has ac*661■crued, and the lessor has'had notice of the forfeiture, •will have that effect. For example, an acceptance, or an absolute and unqualified demand of rent accruing due .after the forfeiture, will operate as a waiver, whatever may be the secret motive of the lessor in taking or demanding it.” In Doe v. Birch (1 M. & W. 408), Park B., said: “ Then I think that an absolute unqualified demand of the rent, by a person having sufficient authority, would have amounted to a waiver of the forfeiture, •and it would have been like the case I cited from Croke’s Reports.” In Doe v. Miller (2 C. & P. 343), it is held that a notice to quit at the end of half a year, given after the happening of a breach, is a waiver of the for.feiture previously accrued.
These well settled principles were the real groundwork which sustained the decisions in Garnhart v. Finney (40 Mo. 449); Wolff v. Shinkle (4 Mo. App. 197), and Horn v. Peteler (16 Mo. App. 438). My learned associates seem to assume that there is a distinctive force in the receiving of money, or of a promissory note, for rent .accruing after a forfeiture. But how can either of those acts indicate a waiver of the forfeiture, except as it will amount to the recognition of a continuing tenancy, which could not co-exist with a forfeiture of the term % The decisions mentioned stand upon no imaginable basis other than that, and an unqualified demand of after-accruing rent is every bit as much such a recognition on the part of the landlord, whether the tenant pays the money,, gives his note, or refuses to do either. So say all the authorities that touch the subject, excepting my learned associates in this case.
The application of these principles to the present ■case is simple enough. The suit proceeds upon an alleged forfeiture of the defendant’s right of occupancy, "by reason of his failure to pay the August and September rents. After these breaches had occurred, the •plaintiff demanded by suit the" subsequently accruing *662rent for October. This was a distinct recognition of the-' relation of landlord and tenant, as continuing to subsist-after the last day of September; which continuing relation was wholly irreconcilable with an alleged forfeiture-consummated by the August or September breach. That-alleged forfeiture was, therefore, waived by the plaintiff, who had, consequently, no right to institute this proceeding for its enforcement. It is not of the least consequence that the October suit was dismissed. The-plaintiff could not thus defeat the legal effect of her waiver. Nor does it matter whether the October rent, was earned, or only due by the terms of the contract. In my opinion, the distinction is without a difference. In any event, the plaintiff, by her suit and demand, declared the defendant to be her continuing tenant for at least a part of the month of October, and this was precisely one of those “ slight acts ” which the law, in its abhorrence of forfeitures, deemed sufficient to constitute a. waiver. It appears, as a matter of fact, that the tenancy continued until the twelfth of December, when the-defendant surrendered his occupancy.
In my opinion, the decision of this court in the-present case is contrary to the decision of the supreme court in Garnhart v. Finney (40 Mo. 449), and to the-decisions of this court in Wolff v. Shinkle (4 Mo. App. 197), and Horn v. Peteler (16 Mo. App. 438); and this, cause should be certified and transferred to the supreme-court, in accordance with the provisions of section six of the constitutional amendment, adopted in November, 1884. Sess. Acts 1883, p. 216.