This cause comes before us at this time on a motion to transfer it to the Kansas City Court of Appeals. The appeal was taken to this court on the theory that title to real estate was involved; if that theory is not correct, then since there is no other issue in the case to bring it within the jurisdiction of this court, we have no jurisdiction of it and the motion to transfer must be sustained.
This is the case: Execution issued on a judgment in favor of plaintiff against defendant and it was by the sheriff levied on certain real estate which the defendant claimed to be exempt from execution because it was his homestead; defendant moved to quash the levy, plaintiff in opposition contended that defendant had abandoned the premises as a homestead. The court heard evidence pro and con and found the issue in favor of defendant, adjudging that the real estate in question was the homestead of defendant and therefore sustained the motion, te quash the levy. From that judgment this appeal was taken by the plaintiff.
*482Is title to real estate involved?
In Price v. Blankenship, 144 Mo. l. c. 208, it was said: ‘ ‘To give this court jurisdiction under section 12 of article 6 of the Constitution, because the title to real estate is involved, it must appear that the title to real estate will, in some way, be directly affected by the judgment to be rendered in the case,” and that rule we have repeated several times since and we still adhere to it. Unless, therefore, title to real estate will be directly affected by the judgment to be rendered in this case this court has no jurisdiction of the appeal.
There is no doubt but that the judgment to be rendered will be a direct adjudication of the defendant’s claim of a homestead in the real estate covered by the levy; as between him and the plaintiff it will determine whether or not he had a right to hold the property exempt from the plaintiff’s execution. If right to exemption under the Homestead Statute is title to real estate, then title to real estate is involved in this suit, otherwise not.
There have been several cases before this court in which this question has appeared but it appears in more direct form in this case than in any previous one. Perhaps it will help to elucidate the subject to make a brief reference to the former cases.
McAnaw v. Matthis, 129 Mo. 142, came up for review of an order of the circuit court sustaining a motion to set aside a sale of real estate under execution. It was a money judgment rendered by a justice of the peace, appeal to the circuit court, appeal dismissed, return of execution in justice’s office by the constable nulla bona, transcript of justice’s judgment filed in the office of the circuit clerk, execution from that office, levy and sale of the real estate by the sheriff; the motion to quash the levy and sale was on several grounds going to challenge the validity of the judgment of the justice, the lack of authority in the circuit clerk to is*483sue the execution, and that no notice of the issuance of the execution was served on the defendant. This court decided that the judgment of the justice was valid, that the execution issued in conformity to the law and that no notice to defendant of its issuance was necessary, he being a non-resident of the county, and therefore the motion to set aside the sale should be overruled. Thus we see there was no question of title to real estate in that case at all, the questions were merely as to the validity of the justice’s judgment, the regularity of the proceedings and the necessity of notice. The defendant’s real estate was only incidentally affected as it might have been by any money judgment rendered against him. The appeal in that case had in the first instance been taken to the Kansas City Court of Appeals and that court sent it here on the idea that title to real estate was involved, and when here no question as to jurisdiction was raised by the counsel and there is no discussion of the subject in the opinion. The taking of jurisdiction of the case by this court appears to have been an oversight. That case was decided in Division No. 1 of this court.
St. Louis Brewing Association v. Howard, 150 Mo. 445, was also a case in which there was no issue which would give this court jurisdiction unless the question of homestead or no homestead was one involving title to real estate, yet this court, Division No. 1, entertained jurisdiction of the ease, citing McAnaw v. Matthis as authority for so doing. In that case there was a motion to set aside and quash a sale of over 400 acres of land under execution, on the ground that defendant was entitled to a homestead in it. The jurisdiction of the court was not challenged and there was no discussion of the subject.
Afterwards, Stinson v. Call, 163 Mo. 323, came before Division No. 2, involving only a question of homestead exemption and the court in deference to what was *484said in MeAnaw v. Matthis entertained jurisdiction, but there was no question .of jurisdiction raised in the case and no discussion of the subject. There was this difference, however, between the last-cited case and the one first cited; in the later case the trial court had sustained the motion to set aside the sale of the land under execution on the ground that the land was the defendant’s homestead. This court on review of the case held that the defendant did not have a homestead in the land, but affirmed the judgment setting aside the sale under execution on another ground. The motion to set aside that sale is not fully set out in the report but if it fairly tendered the issue of homestead or no homestead and if the judgment of the court was directly responsive to that issue there was a jurisdictional question in the case that distinguished it from the McAnaw-Matthis case and would bring it very close to the facts of the case at bar.
In State ex rel. Reed v. Elliott, 180 Mo. 658, the judgment was for city taxes on certain land of defendant in the sum of $76.82 and the same was declared to be a lien on the land. After execution and sale the defendant at a subsequent term moved to set aside the judgment and the sale on certain grounds specified, the motion was overruled and an appeal was taken to the Kansas City Court of Appeals, that court sent the cause here on the ground that title to real estate was involved. But this court was of the opinion that notwithstanding a lien on the land was declared yet there was no title to real estate involved and therefore returned the case to the Court of Appeals. The court in that case, Division No. 1, said: “And the reason is that in all such cases the title is necessarily conceded to be in the defendant, for otherwise the plaintiff would not be entitled to a lien against the land in that suit, and therefore no judgment that could be rendered in the case could divest the title out of the defendant.” In the *485course of the opinion in that case McAnaw v. Matthis is discussed and overruled.
Lawson v. Hammond, 191 Mo. 522, was certified to this court by the St. Louis Court of Appeals under the authority of McAnaw v. Matthis, on the idea that title to real estate was involved. In that case a general execution had issued on a money judgment against the defendant and the sheriff had levied the same on a tract of fifty-three acres of defendant’s land on which, according to the motion, there was an incumbrance of $800 and in which also1 the defendant claimed a homestead exemption. The defendant moved to quash the levy on-the grounds that he was entitled to a homestead in the land, and that he had requested the sheriff to appoint commissioners to set aside his homestead hut the sheriff refused. The trial court heard the evidence, found that the defendant was entitled to a homestead and sustained the motion to quash the levy. This court held that title to real estate was not involved in that case and for that reason returned it to the St. Louis Court of Appeals. In the opinion in that case McAnaw v. Matthis is again discussed and disapproved and Stinson v. Call, supra, which followed the McAnaw ease was also overruled.
The difference between Lawson v. Hammond and this ease is that there the defendant in execution claimed not that all the land levied on was his homestead hut that he was entitled to a homestead in the land, that he had requested the sheriff to appoint commissioners to set it off to him hut the sheriff had refused the request and was proceeding to sell the whole tract; the plaintiff in execution denied the alleged facts in which the claim of homestead was founded, the trial court found that issue for the defendant and quashed the levy. In that case although in the issues of fact joined on the motion there was a question of homestead or no homestead yet that motion would have been sus*486tamed or overruled without a final adjudication that a particular piece of real estate was'or was not the defendant’s homestead.
In Moore v. Stemmons, 192 Mo. 46, there was a motion to quash an execution on the grounds that the judgment was void, that the peculiar title of defendants as trustees was not subject to sale for plaintiff’s debt, that the title was held by defendants in trust for the Methodist Episcopal Church of the United States and not for the particular church ■ in Carthage. The trial court overruled the motion and defendants brought the cause here by appeal, but this court was of the opinion that title to real estate was not involved and, no other ground of jurisdiction appearing, the cause was transferred to the Kansas City Court of Appeals. There was really less ground for claiming that title to real estate was involved in that ease -than in Lawson v. Hammond, supra. The court could not on a motion to quash an execution try the question of whether or not the land claimed by defendants to be held by them in trust for one religious body, was liable to be sold under execution to satisfy a judgment against' what was claimed to be another religious body.
Thus it will be seen that whilst in some of the cases that have been before us on the question of jurisdiction there has been a question of homestead or no homestead, and the court has held in those cases that that question was not one of title to real estate, yet this is the first case that has come before us in which the judgment to be rendered will decide whether or not the defendant in execution is entitled to hold the particular piece of property as a homestead exemption. There is more reason for the contention that title to real estate is involved in this case than there was in any of the cases above mentioned, because in this case if the judgment is against the defendant it will be a direct adjudication that he is not entitled to hold that particular *487piece of real estate as .his statutory homestead and it will pass under the sheriff’s hammer, and on the other hand if the judgment is in his favor he can, so far as this plaintiff claiming under this execution is concerned, hold the property hy the right which the homestead exemption statute creates. Is that peculiar statutory right a title to real estate? The precise question we are now considering was not specifically answered in either of the cases above decided but the reasons given by the court for its rulings in State ex rel. v. Elliott, 180 Mo. 658, and Lawson v. Hammond, 191 Mo. 522, apply with full force to this case and we cannot now say the title to real estate is involved in this case without overruling the two cases just mentioned and that we are unwilling to do.
On the trial of the issues involved in this motion the court will begin with the necessary concession on the part of both parties that the title to the property is well vested in the defendant. But the defendant says, if the plaintiff is to have his way my title will be divested; that brings us to the very point of the controversy. Defendant’s title will not be divested by the judgment in the case, but the judgment will leave the defendant’s property exposed to the sheriff’s levy and the result of that levy with the sequence may be to divest the defendant of his title. But that is the indirect not the direct effect of the judgment.
On the hearing of this motion the court was required to find an answer to these questions: is the defendant the head of the family, does he live on these premises as his family home, is the property within the limit of value and area prescribed by the statute, did his title and occupancy as a homsestead exist before the debt on which the judgment -is founded was incurred, and has it so continued down to date?
We hold that in the trial of those issues and the *488judgment to be rendered on the findings either way the title to real estate is not involved.
The motion to transfer to the Kansas City Court of Appeals is sustained, and it is ordered that the cause be so transferred.
Gantt, G. J., Burgess and Fox, JJ., concur; Lamm, Graves and Woodson, JJ., dissent.