The fact that these words were stricken when the trust deed was signed on July 7, 1961, in and of itself, can have no legal effect on the controversy before us. Those words, when in such an instrument, usually apply when there is an already existing homestead exemption on record and have no application to a purchase money situation as here presented. The question as to whether a homestead recorded after a deed of trust has been executed will have any effect on foreclosure of the trust deed has been decided by this court in Bean v. Eves, 92 Colo. 339, 341, 20 P.2d 544 (1933). There we said:

In the second place the law is clear that homestead exemptions do not operate retroactively. Helkey v. Ashley (1945), 113 Colo. 175, 155 P.2d 143, and Bean v. Eves (1933), 92 Colo. 339, 341, 20 P.2d 544, 545. Thus here the filing by defendants was ineffectual as to plaintiff's prior lien. It follows that upon the failure to redeem the property pursuant to statute, whatever title and interest the defendants had in the property vested in the plaintiff upon the delivery of the sheriff's deed on June 9, 1959. McCracken v. Bank (1926), 80 Colo. 164, 249 Pac. 652.

[4, 5] A marginal declaration of homestead cannot operate retroactively. Bean v. Eves, 92 Colo. 339, 20 P.2d 544. Two days before the marginal declaration was made, the contract between plaintiff and husband of intervener became a fixed obligation to convey land, and Thompson, in his treatise on real property, volume 1, page 1024, section 929, in discussing the application of the homestead exemption, includes the following: "Nor can it be claimed against a contract to convey land, made by a married man whose wife had not joined in the contract; the claimant subsequently setting apart the land as homestead and refusing to convey on the ground that his wife refused to join in the conveyance." The cases upon which counsel for intervener rely either affirmatively show a valid occupancy or do not question it. The cases turn on the priority of recording as between the lien of the person claiming the homestead exemption or that of the judgment or other creditor — circumstances which we do not believe are involved in this case.

[1, 2] Under varying facts, the matter of the priority of a claim of homestead, has been before this court a number of times, and generally, preference has been given to the homestead claim. The decisions otherwise, in each case, however, rest entirely on the nature of the lien if the lands were subjected thereto prior to the assertion of the homestead right. It is well settled in this state by the uniform decisions of our court, beginning with Weare v. Johnson, 20 Colo. 363, 38 Pac. 374, and followed by Jones v. Olson, 17 Colo. App. 144, 67 Pac. 349; Sterling Bank v. Francis, 78 Colo. 204, 240 Pac. 945, and Bean v. Eves, 92 Colo. 339, 20 P.2d 544, that until lands are subjected to a specific lien, they may be the basis of a claim of homestead exemption by the making of the required marginal entry on the record of title. The cases wherein lis pendens is discussed as affecting the matter of priority as a lien, are those in which it is relative to a purchaser or one occupying a like status, during the litigation.

3. That, under the facts here presented, Mrs. Farley's "homestead" is impotent as against the foreclosure of her deed of trust, even if its waiver thereof had been omitted, has recently been decided by this court in a carefully considered case and further examination and discussion here would be futile. Bean v. Eves, 92 Colo. 339, 20 P.2d 544. The judgment is affirmed.