dissenting:
On petition for rehearing, I respectfully dissent to that portion of the majority opinion which awards the excess escrow funds to the plaintiff.
In my view, the plaintiff in failing to redeem from the foreclo*215sure sale lost the benefits of her homestead rights. In order to maintain the homestead priority over the judgment lien of Key Realty, it was necessary that she exercise her right of redemption. Had she done so, the effect of the foreclosure sale would have been annulled under the provisions of C.R.S. 1963, 118-9-5,1 which provides:
“Redemption annuls sale, when — recording of certificate. — If redemption be made by the owner of the premises, it shall annul the sale and leave the premises subject to all liens, which would have existed if no sale had been made, except the lien of the foreclosed mortgage, which shall be discharged by the sale. * * * If redemption be made by a lienor, his certificate of redemption, duly recorded, operates as an assignment to him of the estate and interest acquired by the purchaser at the sale, subject, however, to the rights of persons who may be entitled subsequently to redeem.”
Plaintiffs title to the premises would then have been free of the lien of the foreclosed deed of trust, but subject to the other liens which would have existed if no foreclosure sale had been made, i.e., the lien of Key Realty. Of course, in this circumstance, had she redeemed, her homestead interest would have priority over the lien of Key Realty under the ruling in Sterling Bank v. Francis, 78 Colo. 204, 240 P. 945.
Not having chosen to redeem, plaintiff’s title and homestead interest, which was inferior to the lien of the Boston Federal deed of trust, was foreclosed by the sale. When Key Realty, admittedly a lienor junior to the plaintiff’s homestead interest, redeemed from the sale, by virtue of the provisions of section 118-9-5, Key Realty succeeded by operation of the statute to the interest of the purchaser of the certificate of sale, which was predicated on the Boston Federal deed of trust and admittedly was superior to plaintiff’s homestead interest.
In my view, Sterling Bank v. Francis, supra, is inapposite under the circumstances of this case. While it was initially true under Sterling Bank v. Francis, supra, that plaintiff’s homestead rights were superior to Key Realty’s judgment lien before fore*216closure and redemption, this priority became immaterial when redemption was waived by plaintiff. Plaintiff’s entitlement, if any, to the excess proceeds must be predicated on the statute directing their disposition. Section 38-39-103(4), C.R.S. 1973, provides:
“When a lienor redeems property from a foreclosure sale, escrow funds, not to exceed the amount due on such lien, shall be paid to the last person or institution redeeming said property. Moneys in excess of such lien shall be paid to the owner of record as of the day of the foreclosure sale.” (Emphasis added.)
This section is pertinent to the disposition of the excess under the present facts. It requires that the excess funds in the hands of the county treasurer be paid to Key Realty, the last person or institution redeeming, but not to exceed the amount due on the lien of Key Realty, which was in excess of ten thousand dollars. The excess in the hands of the treasurer amounted to only $2,374.14, after the payment of $1,000 to plaintiff upon her vacating the premises. By this statute, the excess should have been paid to Key Realty inasmuch as it was less than the amount owing Key Realty on its lien.
I would therefore affirm the trial court’s judgment in awarding the excess funds to Key Realty.
I am authorized to say that MR. JUSTICE HODGES joins in this dissent.
Now section 38-39-105, C.R.S. 1973.