¶1When this case was argued and submitted to the court, I had a strong impression, if not a conviction, that the judgment should be affirmed. The conflicting opinions of my Associates, Mr. Justice GIDEON and Mr. Chief Justice FRICK, left me in doubt, and impelled a more careful and painstaking investigation on my part, resulting in a conviction upon which I am now satisfied to rest my judgment.
¶2This court has determined that our mechanic’s lien law, as against a person entitled to a homestead at the time the lien attaches, is unconstitutional. Volker, etc., v. Vance, 32 Utah, 74, 88 Pac. 896, 125 Am. St. Rep. 828. As against a person not entitled to a homestead at the time the specific lien attaches the law is not unconstitutional, and a homestead right acquired subsequent to the lien is, and should be, subject thereto. This proposition is, manifestly, in acord with common honestly as understood by honest people everywhere, and I believe it is sustained by the preponderance of judicial authority. Cyc., vol. 21, at page 513, says:
“According to the weight of authority, no homestead can be claimed if, at the time a lien attaches to the land, the debtor was not entitled to an exemption because he had not acquired the personal status giving him the privilege; but this rule is not universally followed and the contrary view is maintained in some jurisdictions.’’ (The authorities pro and eon are cited in the note.)
¶3Boisot on Mechanics’ Liens, section 142, says:
*13"But, where the laud is not a homestead at the time the lieu attaches, no subsequent act of the owner can create a homestead right superior to the lien.”
¶4See, also, Phillips, Mechanics’ Liens (3d Ed.) sections 183a, 250, Bloom, Mechanics’ Liens, p. 455, and other authorities too numerous to mention.
¶5I find nothing in our Constitution, statutes, or judicial decisions calling for a different rule. While I am in favor of the utmost liberality in favor of homestead exemptions, I think this court has gone far enough, especially in the Vance Case, supra, in which Mrs. Vance’s homestead was held exempt, even though she authorized the construction of the building. I, however, approve of the decision in that case, and think it is well sustained by judicial authority. There is more doubt as to whether the same would be true in the case of an ordinary judgment lien. As to that I express no opinion, because the question is not involved. My views upon this question are best expressed by Hon. D. N. Straup (then Chief Justice) in his opinion in the second appeal of the Vance Case (36 Utah 359, 103 Pac. 974, 24 L. R. A. [N. S.] 321, Ann. Cas. 1912A, 124), to wit:
“'Whatever liberality should be given the construction of our homestead exemption laws, they ought not to be so construed as to give the debtor the power by his own acts to deprive others of rights previously obtained in his property.” (Italics mine.)
¶6I concur in the opinon affirming the judgment.