(298 S.W.)

"political subdivision of state," as such term is used in Constitution relating to Supreme Court's appellate jurisdiction (Const. art. 6, § 12).

School district is not political subdivision of state, as such term is used in Const. art. 6, § 12, relating to appellate jurisdiction of Supreme Court.

with the "head of a family," and unless one [ 4. Courts 231 (5)-School district is not sustains this relation he cannot claim an exemption under the homestead law. Kansas City Granite & Monument Co. v. Jordan (Mo. Sup.) 295 S. W. 763, not yet (officially) reported and cases cited therein. Other cases announce this rule of interpretation, if not in direct terms at least in principle. Regan v. Ensley, 283 Mo. loc. cit. 303, 222 S. W. 773; Balance v. Gordon, 247 Mo. loc. cit. 124, 152 S. W. 358; Bushnell v. Loomis, 234 Mo. 371, 137 S. W. 257, 36 L. R. A. (N. S.) 1029; Ridenour v. Monroe, 142 Mo. loc. cit. 170, 43 S. W. 633. We therefore overrule this contention.

The trial court having erred in ordering the sale of the real estate devised to Sam Hayes for the payment of the debt due from the estate of the testator to the plaintiff, the judgment is reversed.

All concur.

STATE ex rel. CONSOLIDATED SCHOOL
DIST. NO. 2 et al. v. INGRAM, Superin-
tendent of Schools, et al. (No. 29996.)
Supreme Court of Missouri, Division No. 1.
Sept. 16, 1927.

1. Appeal and error 1078 (2)-Question of appellate jurisdiction, though not raised In briefs or in oral argument, cannot be ignored. Question of appellate jurisdiction of Supreme Court, although not raised in briefs nor in oral argument, cannot be ignored.

2. Courts 231 (5)-That county school superintendent is party to certiorari proceeding to question consolidation of school districts does not give Supreme Court appellate jurisdiction (Const. art. 6, § 12).

Although county school superintendent is not state officer as words are used in Const. art. 6, § 12, relating to Supreme Court's appellate jurisdiction, her office is one under state, and, if her title thereto were involved, case would be one giving Supreme Court appellate jurisdiction, but mere fact that she is party to certiorari proceedings to question consolidation of school districts does not give Supreme Court appellate jurisdiction.

3. Courts 231 (5)-"State officer," as used in Constitution relating to appellate jurisdiction of Supreme Court, refers to officers whose official duties and functions are coextensive with state boundaries (Const. art. 6, § J2).

In Const. art. 6, § 12, referring to appellate jurisdiction of Supreme Court, "state officer" means officer whose official duties and functions are coextensive with state boundaries.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, State Officer.]

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Political Subdivision.]

5. Courts

231 (5)-Supreme Court held without jurisdiction of appeal from judgment of circuit court quashing certiorari to county school superintendent and board of arbitrators (Const. art. 6, § 12; Rev. St. 1919, §§ 11201, 11253).

Under Const. art. 6, § 12, Supreme Court has not jurisdiction of appeal from judgment of circuit court quashing writ of certiorari directed to county school superintendent and members of board of arbitrators selected by her which sustained appeal on proposition to change boundary lines of school districts under Rev. St. 1919, §§ 11201, 11253, where one district approved consolidation and other disapproved, and case should be transferred to Court of Appeals.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Proceeding by the State, on the relation of Consolidated School District No. 2 and others, for certiorari to be directed to Annie Ingram, School Superintendent of Pike County, and others, members of a Board of Arbitrators selected by her which had sustained an appeal upon a proposition to change boundary lines of consolidated school districts. From a judgment quashing the writ of certiorari, the relators appeal. Cause transferred to the St. Louis Court of Appeals.

A. J. Murphy, May & May, and Ras Pearson, all of Louisiana, Mo., for appellants. Frank J. Duvall, of Clarksville, and Hostetter & Haley, of Bowling Green, for respond

ents.

LINDSAY, C. This is an appeal from the judgment of the circuit court of Pike county quashing a writ of certiorari previously issued, and directed to Annie Ingram, as county superintendent of schools of Pike county, and four members of the board of ar

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

bitrators selected by her which had sustained an appeal, upon a proposition to change boundary lines.

636, 33 L. R. A. 616; State ex inf. v. Fasse, 189 Mo. 532, 88 S. W. 1; Ramsey v. Huck, 267 Mo. 333, 184 S. W. 966; State ex inf. v. Consolidated school district No. 2 and con- McCann, 307 Mo. 455, 270 S. W. 688. She solidated school district No. 4 in Pike county is not a "state officer," as those words are were contiguous, and the question submitted used in section 12 of article 6 of the Constiand voted upon was "to change the bound- tution. Those words refer only to officers ary lines of said consolidated school dis- whose official duties and functions are cotrict No. 4, by taking into and including in extensive with the boundaries of the state. said consolidated school district No. 4 all State ex rel v. Dillon, 90 Mo. 229, 2 S. W. the territory now included in said consolidat- 417; State ex rel. v. Spencer, 91 Mo. 206, ed school district No. 2." There was a ma-3 S. W. 410; State ex rel. v. Bus, 135 Mo. jority for the change in consolidated school 325, 36 S. W. 636, 33 L. R. A. 616; State ex district No. 4, but not a majority in consoli- rel. v. Higgins, 144 Mo. 410, 46 S. W. 423; dated school district No. 2. Dahnke-Walker Milling Co. v. Blake, 242 Mo. 23, 145 S. W. 438; Hasting v. Jasper County, 314 Mo. loc. cit. 150, 282 S. W. 700. The question of our appellate jurisdiction, in all cases in which there is involved "the title to any office under this state," is fully discussed in the opinion by Graves, J., in State ex rel. v. Hyde (No. 27265) 296 S. W. 775, not yet officially reported, and the cases are fully reviewed therein.

There is discussion in the briefs of the question whether the board of arbitrators had jurisdiction, and whether the question submitted to the voters in the respective districts was one authorized by the statute. Sections 11201 and 11253, R. S. 1919.

The application for the writ was made in the name of consolidated school district No. 2, and the respondent by motion raised the question of authority of any one to make the said district No. 2 the relator. The ground was that, after the said election, and before filing the petition, there was no meeting of the board of directors of consolidated school district No. 2, and no action of the majority of them authorizing the application for the writ. The court, upon that theory permitted three individuals, who were or had been directors of consolidated school district No. 2, as citizens and taxpayers of that district, to be made parties, and permitted them to adopt as their own the allegations of the petition.

[1] The question of the appellate jurisdiction of this court was not raised in the briefs, nor in oral argument. Nevertheless the question of jurisdiction cannot be ignored. There is not involved in the case the construction of any provision of the Constitution, nor is there involved "the title to any office under this state," nor is a "state officer" a party.

[2, 3] Annie Ingram, as county superintendent, is a party, but her title to the office is in no way involved. The office is one "under this state," and, if her title to the office were involved in the case, appellate jurisdiction would be vested in this court. State ex rel. v. Meek, 129 Mo. 431, 31 S. W. 913; State ex rel. v. Rombauer, 101 Mo. 499, 14 S. W. 726; State ex rel. v. Rombauer, 104 Mo. 619, 15 S. W. 850, 16 S. W. 502; State ex rel. v. Rombauer, 105 Mo. 103, 16 S. W. 695; State ex rel. v. Bus, 135 Mo. 325, 36 S. W.

[4-7] It has been uniformly held by this court that a school district is not a "political subdivision" in the sense in which that term is used in the Constitution. Section 12, art. 6. The question is discussed in School District v. Boyle, 182 Mo. 347, 81 S. W. 409. and in School District v. Burris, 84 Mo. App. loc. cit. 662. Those cases and others are referred to in the opinion in Wilson v. Kingsley Drainage and Levee District, 237 Mo. 46, 139 S. W. 136. These cases are also referred to in Harrison & Mercer County Drainage District v. Trial Creek Township, 297 S. W. 1, a case recently decided in this division. All the cases hold that a school district, in a judicial sense, is not a political subdivision of the state. That being true, and there being in this case no other ground of appellate jurisdiction in this court, we are bound to hold that this court is without jurisdiction of the cause on appeal. Jurisdiction over the subject-matter cannot be conferred by consent or acquiescence; and there exists the duty to pass upon the question, whether raised or not. State ex rel. v. Sims, 309 Mo. 18, 274 S. W. 359.

The cause is transferred to the St. Louis Court of Appeals.

SEDDON and ELLISON, CC., concur.

PER CURIAM. The foregoing opinion by LINDSAY, C., is adopted as the opinion of the court.

All of the Judges concur.

(298 S.W.)

Appeal from Circuit Court, Greene Coun- sold it, and pleads laches and estoppel as a bar ty; C. H. Skinker, Special Judge.

"At the trial, it was admitted that C. B. Holland was the common source of title to the plaintiff's petition, and that he acquired title Mann & Mann and W. D. Tatlow, all of through the foreclosure of a deed of trust exSpringfield, for respondent. ecuted by A. B. Crawford. It was also con

John T. Sturgis, of Springfield, for appel-one-third interest in the property described in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Defendant then offered a written contract between T. B. Holland and W. B. Sanford, dated August 26, 1911, as follows:

"'Whereas, I, T. B. Holland, have this day executed to W. B. Sanford an option to buy from me within 30 days from this date 940 shares of stock of the capital stock in Holland Banking Company, of Springfield, Mo., for the price and sum of $200 per share, or a total of $188,000 in cash:

"Now, therefore, it is agreed and understood by both parties hereto that, in the event said purchase price is paid within time specified, said sale is to carry with it the good will of said banking business, and is to also include the use of the corporate name, and is to be full purchase price for capital, surplus, undivided profits, and profit and loss account, same to include all assets of every kind and nature belonging to said bank except the real estate. (Italics are ours.)

"'All of said real estate is to be sold to said Holland and Sanford jointly by said bank for the sum of $1,738.30, the sum at which it is now carried on said bank books, and one-half of purchase price to be paid by each of said parties.

ceded that the Townsend heirs owned the other, T. B. Holland and the Townsend heirs to Arch two-thirds interest in the same land. The McGregor, dated April 8, 1905, for 94 feet on plaintiff then offered in evidence a quitclaim deed Olive street adjoining the 50-foot lot in confrom C. B. Holland to the bank, dated De- troversy on the east, and also a quitclaim deed cember 13, 1900, recorded March 2, 1921, which from Arch McGregor to T. B. Holland for this conveyed the land in controversy here and sev- same land, dated May 24, 1905. The latter deed eral other tracts of land. It next offered a was excluded on objection of plaintiff, but was quitclaim deed from the bank to plaintiff later offered by plaintiff and admitted. for the land in controversy, dated March 5, 1921, and recorded March 7, 1921. It then offered a warranty deed from defendant to George H. Townsend for the same land, dated February 25, 1921, and recorded March 7, 1921. This deed recites that the grantor (defendant herein) is the 'residuary legatee of T. B. Holland.' It also recites the receipt of $1,200 as the consideration for the transfer. Plaintiff then offered the files and record in a suit tried in the Greene county circuit court at the May term, 1923, by this plaintiff against defendant and George H. Townsend to try title to this land. This record shows that the evidence was heard, the suit was then dismissed as to the defendant in this case, Bertonia A. Holland, and judgment was then rendered against plaintiff in favor of George H. Townsend. The court held in that case that Townsend was an innocent purchaser of the land for value, and without any knowledge of the unrecorded deed from C. B. Holland to the bank, and refused to pass on any other questions in that suit. The plaintiff then rested. "The defendant then offered the will of C. B. Holland, dated June 21, 1895, and probated March 25, 1901, in which he devised all his property to his son, T. B. Holland, in general terms, without particularly describing any property. Defendant next offered the will of T. B. Holland, dated June 17, 1913, and probated August 9, 1913. This will contains several clauses in which real estate was devised to different persons, and in these clauses each tract of land disposed of was described. He devised: To his widow, this defendant, seven tracts. To Mrs. Charles Holland, a daughterin-law, one tract. To Charles Holland, a son, two tracts. To Mrs. Jarrett, a daughter, five tracts in Springfield and some land in Taney county. One of these tracts devised to Mrs. Jarrett adjoins the land in controversy here on the east side, and is described as follows: 'Beginning at a point 173 feet east of the north-cupied at the present time by Minta Lair and west corner of lot 14 in block 7, original plat of Springfield; thence east 94 feet, south 1172 feet, west 94 feet, north to beginning, being 79 feet of lot 13 and 15 feet of lot 14 in block 7, Springfield, Mo., situated on Olive street, west of Cumberland Presbyterian Church, reserving off of said tract for an alley 20 feet adjoining the Townsend property, and running the full length north and south of the above-described tract.' To Bertha Simmons, a daughter, three tracts. To Grady Holland Sanford, a grandson, one tract. The eleventh clause in the will gives the rest and residue of his estate, of whatever kind and wherever situated, to his wife, Bertonia A. Holland, the defendant in this case. The defendant then offered several deeds, executed by T. B. Holland to various parties for land described in the deed from C. B. Holland to the bank, to show that T. B. Holland conveyed these lands as his own after the death of his father, C. B. Holland, but did not convey the 50 feet involved in this suit.

"Defendant then offered a warranty deed from

"It is also agreed and understood that the said Holland is to remain a director and president of said bank, without further remuneration or salary for such time as may be mutually agreed upon. And, after said Holland retires, he is not to use or allow his name to be used in connection with any other bank in Springfield, Mo. [Signed] T. B. Holland. "W. B. Sanford. ""The said T. B. Holland reserves to himself and for his own use the bank's entire interest in the Olive street property, known as the Townsend and Crawford property.

"Also the property on Phelps avenue, known as the Baxter property, and purchased at the Matilda J. Weaver bankruptcy sale, it being oc

additional house by other parties. Said property as a whole fronts 108 feet more or less on Phelps avenue, and is about 140 or 150 feet on Grant street. [Signed] W. B. Sanford.'

"The transfer of stock was made as provided in the contract, and the $1,738.30 paid to the bank, but no deed to any land was made by the bank to Holland & Sanford.

"Defendant then offered a quitclaim deed from the bank to the Holland Land & Loan Company, dated December 28, 1912. This deed covered a large amount of property, but only contained two lots that were included in the deed from C. B. Holland to the bank, and did not include the land in controversy here. We find a statement in the record here that the evidence shows that the Holland Land & Loan Company was organized in 1912 for the purpose of taking over the land of Holland & Sanford, each of them owning one-half of the capital stock, and that the land belonging to the bank was then conveyed to it. Defendant then offered a deed from Lemuel L. Bigbee to C. B.

(298 S. W.)

Holland, dated May 4, 1869, conveying all of lots 13 and 14, block 7, original plat of Springfield, and a deed from Holland to A. B. Crawford, W. M. Townsend, and W. N. Townsend, dated March 15, 1887, conveying 150 feet on the south side of Olive street, in Springfield, Mo., which covers the land in controversy and other land adjoining it on the east. Defendant then offered deed of trust by Crawford on a one-third interest in this land and its foreclosure and purchase by C. B. Holland. These deeds were offered to show what the TownsendCrawford property was as mentioned in the contract between T. B. Holland and W. B. Sanford, wherein it is recited that Mr. Holland reserves to himself the property known as the Townsend and Crawford property. All of these deeds offered by defendant were objected to by plaintiff on the ground that they did not convey the land in controversy, and were immaterial to any issue involved in this case. This objection was overruled, and, we think, correctly so.

"The Holland Bank was a private bank owned by C. B. Holland and his son, T. B. Holland, prior to 1896. It was then incorporated for $100,000, and all of the stock, except 60 shares, presumably of the par value of $6,000, was owned by the two Hollands. The 60 shares were then owned by W. B. Sanford. C. B. Holland died in 1901, and his stock went to his son, T. B. Holland. T. B. Holland then owned 940 shares, and W. B. Sanford 60 shares, the two together owning all the stock in the bank. This seems to have continued until 1911, when Sanford purchased Holland's 940 shares of stock and thereby became the owner of all the stock. How long he retained it does not clearly appear.

deed to the Holland Land & Loan Company. Mr. Cowden told the party that, if the bank had no interest in the property, it would be all right to make a quitclaim deed as requested. The deed was then executed.

Mrs. Holland, the defendant, testified that she knew nothing of the unrecorded deed from C. B. Holland to the bank until it was filed for record March 5, 1921. Defendant then rested. "The plaintiff then offered testimony as follows: Harry Nelson testified:

"That he had been connected with the Holland Bank for 27 years. It was first a private bank under the name of C. B. Holland & Son and was afterward incorporated; was with the Holland Bank when T. B. Holland sold his stock to W. B. Sanford; was note teller. The money that was collected by the bank passed through his hands. 'I remember about the payment of rent on this brick building next to the McGregor-Noe hardware store, owned partly by the Townsend heirs. I used to receive the check from that company. The bank kept no rent account, but I have the book in which the indorsements were made. It was just entered as rent paid once a month, along with other items of earnings of the bank. It was usually paid the last day of the month, one-third to the bank and two-thirds to the Townsends. The amount was $33.33 per month. In October, 1911, one-third of it went to the bank, and two-thirds to Townsend. I have several months along there. The last item is December, 1911, and that is the last that appears to have gone to the bank. The money was paid to the bank before being divided. It was then divided as I have stated. I do not know how far back that extended, but it was handled that way for a considerable time. My records show the same amount for January, "It was admitted that defendant paid the 1912, but both amounts were deposited. taxes on the land in controversy for 1913, and would not go through my department, because for each year thereafter until she sold to Mr. it was no longer coming to the bank. My recolTownsend. Stanley C. Booth, treasurer of Mc-lection is that, after that, one-third was deGregor-Noe Hardware Company, testified that the property in controversy has a warehouse or barn on it which their company rented. Prior to the death of T. B. Holland, the rent was paid to him. He died in July, 1913. For August, 1913, the rent was paid to the Holland Bank. From that time until they moved out, December 31, 1920, two-thirds of the rent was paid to Townsend and one-third to Mrs. Holland. The rent was $33.33 per month and paid monthly. It was admitted that at the death of T. B. Holland the stock in the Holland Land & Loan Company was owned in equal parts by T. B. Holland and W. B. Sanford, except one share to Mr. McDavid, which he held in order to qualify him to serve on the board of directors. T. B. Holland by his will transferred his shares to Grady Sanford, and, after Holland's death in 1913 to the time of the trial, the stock, except one share, was held by W. B. Sanford and his son, Grady Sanford.

"George H. Townsend testified that he bought the land from Mrs. Holland, had an abstract of title, and had it examined by an attorney, and had no notice of any outstanding title or claim. He paid Mrs. Holland $1,200.

"Mr. Cowden, attorney, testified that he was consulted by an officer of the Holland bank before the bank made the deed to plaintiff. This officer of the bank told him the bank had no interest in the property, but Mr. W. B. Sanford had asked that the bank make a quitclaim

It

posited to the Holland Land & Loan Company, and two-thirds still went to Townsend. The bank books show that this rent never went to the credit of the bank after December, 1911. At the time T. B. Holland sold his bank stock to W. B. Sanford, he was president and Sanford cashier. Sanford then became president and Mr. Mitchell cashier. That continued until the consolidation with the State Savings Bank, and then Mr. Ferguson became president. Sanford went out of the bank three or four years ago. This $11.11, one-third the rent, was deposited to the bank and went into its earnings, the same as interest or anything else.' Afterward, recalled, he stated that he had looked the matter up, and that one-third the rent for 1911 went to the bank. For 1912, it went to Holland and Sanford; January, 1913, went to Holland Land & Loan Company.

"Guy S. Mitchell testified: 'I have been connected with the Holland Bank since 1891; am familiar with the books of the bank; have traced this rent account, and find for 1911 onethird the rent went to the credit of the bank, as part of its earnings, and two-thirds to Townsend. In 1912 the one-third went to Holland & Sanford. The Holland Land & Loan Company was formed and began business about January 1, 1913. The account of Holland & Sanford was then transferred to the Holland Land & Loan Company, and one-third the rent paid to it from January 1, 1913, until the death of T.