92 Colo. 339 | Colo. | 1933
Lead Opinion
delivered the opinion of the court.
Suit to enjoin foreclosure of a trust deed, and to establish priority of a homestead exemption claim. A cross-suit by defendant Eves for possession of the property is involved. On trial plaintiff’s suit was dismissed and the relief sought by defendant was granted. Plaintiff prosecutes error.
It appears that in January, 1927, plaintiff’s husband purchased the property, and simultaneously with receipt of conveyance he executed and delivered a note to the grantor in evidence of part of the purchase price, and a trust deed on same property to secure it; that the deed was dated January 6 and the trust deed January 7,1927, and both were acknowledged and recorded on the latter date; that during the negotiations leading up to the transfer of the property, as well as when the transaction was closed, plaintiff was present with her husband; that subsequently, and before maturity, the holder of the note, for value, assigned it to Eves; that January 4, 1930, the note being in default, Eves, through defendant Peck, as public trustee, commenced foreclosure proceedings, and February 4, 1930, formal sale occurred, when Eves became the purchaser and received certificate of purchase; that January 21, 1930, plaintiff made formal homestead entry on the margin of the record of her husband’s deed, and based thereon seeks to have the trust deed, and rights
The suit was tried on plaintiff’s amended complaint, filed November 18, 1930, where she pleaded her homestead entry as Indicated, and Eves, answer and cross complaint, filed November 26,1930, in which she set forth the matter of the trust deed and its foreclosure, as already narrated, but with the additional allegation, which was established, that pending the forming of issues, no restraining order having been granted, and prior to the filing of the amended complaint, she received trustee’s deed to the premises, and prayed for immediate possession.
Plaintiff relies on sections 5925 and 5929, C. L. ’21, the first section providing the manner of filing claim of homestead, and the second how property burdened with such filing may be encumbered, the requirement being that both husband and wife shall join in executing the lien sought to be created. We are constrained to believe that neither section has application here. When the trust deed was given plaintiff’s homestead entry had not been made, nor did she seek to impress it until some three years later, and after default in the obligation and formal foreclosure of the trust deed was in process. The statute does not contemplate uncertainties. From the language of the enactment we may not deduce any purpose to make the entry retroactive. It is the entry that gives potency to the right, and until avail is made of the statute in the manner provided, the right is inchoate, incomplete, not full, hence not to be preferred over a lawful, definite and specific lien previously established. Runyan v. Snyder, 45 Colo. 156, 100 Pac. 420; Wells v. Cay-wood, 3 Colo. 487; White v. Hartman, 26 Colo. App. 475, 145 Pac. 716; 29 C. J. 863. And the rule is emphasized where, as here, the trust deed sought to be subordinated to a homestead entry was given to secure purchase money. 29 C. J. 864.
We have not failed to note Sterling Bank v.
Mr. Justice Campbell dissents.
Dissenting Opinion
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
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'?
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
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.