Pass v. Pass

Hewlett, Justice.

The first question for decision is, did the court err in overruling the demurrer? It is insisted, in the brief of counsel for the plaintiff in error, that the petition did not show on its face that the plaintiff, if entitled to a homestead, was entitled to such as against the execution which she sought to enjoin, because, first, it did not affirmatively appear that she had not waived a homestead with reference to the judgment; and second, it was a proceeding in equity, and the plaintiff did not allege a tender before the time the suit was filed; The Code, § 37-104, declares:…