Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 431
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1875. ROGERS V., RAGLAND. 431
Argument for plaintiff Brownson.
out the decree of any court ? Surely not. If so, the mere will
of the subject is superior to law, or else the law by thus vesting
the homestead as it stood at the time of the death of the
head of the family, has at least acted precipitately, and done
that which the will of the subject may declare of no effect and
useless. As the law has been declared to be the perfection of
human reason, we are indisposed to believe that any such right
exists in the subject, or that the law does a useless or foolish
thing; or determines the right without first consulting the interested
parties as to. their wishes, only to .have the same undone,
and that determination set aside at the mere volition of
parties. If the law did not thus vest the homestead, we would
see no reason to doubt the right of the surviving head of the
family to change, bonafide, the homestead by abandoning that
used by the deceased head of the family and occupying another,
as fully as the deceased head of the family might have done;
but vesting as it does, the exercise of such rigllt of election
wouli operate as a fraud upon creditors, such right being no
part of the contract between the parties. If such right had
been recognized by the settled construction of the Constitution
and of the status touching the subject, then such construction
would become part of every contract by which a creditor acquires
his demand, and he could not complain. It is not.tlhe
right to a homestead that so vests (if there be one), but it is the
right to the homestead that vests. The specific property existing,
and being in no way undefined by reason of its being a
part of a larger or more valuable tract of land than the law so
protects, we submit that the right of election does not exist,
but that the plaintiff must hold just such homestead as Dr.
Ragland had at the time of his death. Such seems to be the
effect in the decision in Blair & Co. v. Thorp (33 Texas, 49.)
If there be no homestead upon the death of the head of the
family, the survivor and the children, if there be any, or either
of them, are entitled to have the value of the homestead, to be
raised out of other property in place of the same, and in this
case, if the value of the real homestead be less than the law
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/439/: accessed December 18, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .