Judgment affirmed, with direction.
Suit was brought on a promissory note containing the usual waiver of homestead, dated Februaiy 1,1898. Defendant pleaded: The note is illegal and void, beiug a •contract against the policy of the law, in that it contains a waiver of homestead or exemption right of defendant or his family, as against this debt or any renewal thereof. His wife had filed in the court of ordinary a schedule for the exemption of realty and personalty, under the •code, §2040 et seq., for the benefit of her family; and in the schedule particularly set fórth the land covered by .a mortgage made by defendant to secure the note sued •on; which schedule was approved and recorded on October 7,1878. The property so set apart is in the nature •of a trust estate; and nothing appears in plaintiff’s declaration to authorize a'judgment of the city court against said trust property. Defendant’s wife has pending in the superior coui’t a petition filed by her, for injunction and other relief; which court, having full jurisdiction of the parties and subject-matter of this controversy, should be allowed to retain jurisdiction, to do full and complete justice, etc. This plea was stricken on demurrer, and judgment rendered by the court for the plaintiff'.
The declaration contained a count for $6.10 taxes paid by plaintiff at defendant’s request. By inadvertence this sum was included in the amount of the judgment rendered, the only question argued and decided by the court below being on the plea. The bill of exceptions was certified in vacation.
Johnson & Pledger and Thomas & Thomas, for plaintiff in error. James H. Gilbert, contra.