Leona I., M. & C. Co. v. Roberts

Citations

• 62 Tex. 615
• 1884 Tex. LEXIS 299

Syllabus

<p>1 Bond—Statutory and common law.— A bond was required by the governor of the state of a company which constructed an irrigation ditch, under the provisions of the act of March 10,1875, entitled “An act to encourage the construction of canals and ditches for navigation and irrigation.” It was made conditioned that the company would keep the ditch in proper repair, so that the water would flow freely through its length, and irrigate the land along the ditch for ten years; and it recited that its execution was required by the governor to satisfy him that the company had the ability, and intended to keep the ditch in proper repair for ten years, under the provisions of the act above referred to. The bond was exacted to satisfy the governor of facts as to which under the l§iw he was to have proof, before the company could receive land certificates for constructing the ditch. In a suit by the state to recover upon the bond, held,:</p> <p>(1) The bond was not required by the law.</p> <p>(2) The bond afforded no proof, in a legal sense, of a compliance or an intention on the part of the company to comply with the law.</p> <p>(3) The governor was not authorized to procure indemnity for the state in case the company failed to comply with the law, in the manner attempted.</p> <p>(4) The bond did not afford either satisfactory evidence of facts, required by statute to be ascertained by the governor, or a substitute therefor.</p> <p>(5) The demand for the execution of the bond was an onerous condition precedent to the enjoyment of a light, and unauthorized.</p> <p>(6) The bond, being executed colore officii, and not having been voluntarily executed, cannot be enforced as a common law bond. Citing authorities, for which see opinion.</p> <p>(7) The bond, being made under duress and without lawful authority, was void.</p>