Our jurisdiction of the appeal is not questioned. "Counsel on each side apparently assume that we have jurisdiction of this appeal, but jurisdiction `can neither be waived nor conferred by the consent of parties.' Whether the question is Jurisdiction. raised by counsel or not it is our duty to determine from the record in each case whether or not we have jurisdiction." [Lewellen v. Lewellen, 319 Mo. 854, 5 S.W.2d 4; Devoto v. Devoto (Mo. Sup.), 326 Mo. 511, 31 S.W.2d 805; Cunningham v. Cunningham, 325 Mo. 1161, 30 S.W.2d 63.] We assume that the appeal was granted to this court on the theory that title to real estate is involved.

3 C.J., p. 372, sec. 128. To same effect, see Barnett v. Kunkel, 264 U.S. 16, 44 S.Ct., 254, 68 L.Ed., 539; Smith v. Apple, 264 U.S. 274, 44 S.Ct., 311, 68 L.Ed., 678; Lewellen v. Lewellen, 319 Mo. 854, 5 S.W.2d 4; Tressler v. Whitsett, Mo. App., 280 S.W. 438; State ex rel. v. Hoffman, 313 Mo. 667, 288 S.W. 16; Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38, 41; Giles v. Teasley, 193 U.S. 146, 24 S.Ct., 359, 48 L.Ed., 655, 659. The caption of the original bill filed in the chancery court is as follows: