dissenting.
I dissent for the reasons expressed in an opinion which was prepared on the supposition that the judgment should be reversed. As it still expresses my views, it is now filed as a dissenting opinion.
Plaintiff below, Mrs. Rae Bean, plaintiff in error here, brought this action against Alta M. Eves and the public trustee of the City and County of Denver to enjoin foreclosure of, and to establish a homestead exemption lien upon, Denver city property covered by a trust deed. On issues of fact joined upon a trial to the court without a *343jury, the finding- was in favor of the defendant Eves, upon which finding’ judgment of dismissal of the action followed. The material facts as disclosed by the record are succinctly stated by counsel for defendants in error in his brief as follows: January 7, 1927, the plaintiff’s husband purchased certain real estate in Denver from one Smedegaard and executed and delivered to the latter a deed of trust securing payment of $6,500, part of the purchase price, the same being evidenced by a promissory note which was subsequently transferred before maturity by endorsement to the defendant herein, Alta M. Eves. In August, 1929, default was made in the payment of the note and noncompliance with the terms and conditions of the trust deed securing the same. The plaintiff herein, Mrs. Bean, did not join with her husband in the execution of this trust deed. More than three years later, January 21,1930, Mrs. Bean claimed a homestead entry in the property covered by the trust deed by complying with our statute in that respect by the usual marginal entry on the recorded deed in the office of the clerk and recorder of the City and County of Denver. In February, 1930, foreclosure proceedings were commenced under the trust deed and in November, 1930, a trustee’s deed was issued to the defendant covering this property. Subsequent to the commencement of the foreclosure proceeding’s the plaintiff Bean commenced this action now before us seeking to enjoin the foreclosure of the trust deed and to establish a prior lien of $2,000 by virtue of her homestead entry of January 21, 1930, as against the deed of trust executed in January, 1927.
The decisive question below, as here, as the defendant Eves asserts, and as I think rightly, is whether or not the homestead entry of Mrs. Bean, made after the recording of the valid deed of trust, creates a lien in her favor, as the wife of the maker of the trust deed, senior to the lien of the trust deed, particularly, as here, where the deed of trust was given as a part of the purchase price of the real estate in question and contemporaneously with the execution and delivery of the deed thereto'? *344Counsel for Mrs. Eves strenuously insists that the marginal entry by Mrs. Bean of a homestead upon her recorded deed, in compliance with section 5925, C. L. 1921, will not defeat the pre-existing lien of the recorded deed of trust which, as here, was given to secure part of the purchase money of the property in question. To this proposition is cited: 29 C. J., p. 863, §208, p. 864, §212; Wells v. Caywood, 3 Colo. 487, 498; White v. Hartman, 26 Colo. App. 475, 145 Pac. 716; and Runyan v. Snyder, 45 Colo. 156, 100 Pac. 420. Counsel, however, if he has not overlooked, has not called our attention to, 29 C. J., page 859, section 202, which states that in some jurisdictions it is held that general obligations existing prior to the establishment of the homestead right will not be defeated where the debtor subsequently claims that the premises are his home. The author, however, states that the rule is apparently otherwise in some states, including Colorado, where liens attaching by operation of law, such as judgment liens are suspended by homestead exemption perfected at any time before the premises have actually been sold thereunder, and cites, among other cases, Weare v. Johnson, 20 Colo. 363, 38 Pac. 374; Barnett v. Knight, 7 Colo. 365, 3 Pac. 747.
In the view I take of this case I do not find it necessary to go beyond our own decisions in the determination of the present controversy. A late case in our own reports upon this question is Sterling Bank v. Francis, 78 Colo. 204, 240 Pac. 945. In the opinion at page 205 we said: “The question for decision is whether the lien of this judgment, not aided by an execution before the homestead was acquired, is superior to the homestead right of the defendants?” This question is answered at page 206 of the opinion where we said: “We are relieved of the necessity of entering upon any extended discussion of this question. Whatever may be the rule in other jurisdictions the settled rule of the appellate courts in this state for more than thirty years has been that real estate which has not been subjected specifically to a judgment lien by a levy of execution or writ of at*345tachment before it is homesteaded is exempt from execution and sale.” "We further said in the opinion at page 206: “In Jones v. Olson, 17 Colo. App. 144, 67 Pac. 349, our Court of Appeals recognizing the rule established in the Woodward case, [Woodward v. People’s Nat. Bank, 2 Colo. App. 369], and approved in Weare v. Johnson [20 Colo. 363], distinguished the case then before it by the fact that therein the execution had not only been sued out but had actually been .levied upon the property before the homestead claimant had taken any steps to avail himself of the statutory privilege of exemption.” In White v. Hartman, 26 Colo. App. 475, 145 Pac. 716, our Court of Appeals refers approvingly to the decision in Weare v. Johnson, supra, and Jones v. Olson, supra. In the White-Hartman case the lien in question was not general but specific. In the case now before us for review the real estate in question was not subjected specifically to a judgment lien either by levy of execution or writ of attachment before it was homesteaded by the plaintiff in this case.
The opinion of the majority, in effect, reverses a long line of our' decisions extending over many years. For the reasons above given I think the judgment should be reversed.