Nield v. Burton
| Decision Date | 27 June 1882 |
| Court | Michigan Supreme Court |
| Parties | NIELD v. BURTON and others. |
Where a party elects to waive the tort and sue in assumpsit for the value of timber cut upon his land, he cannot afterwards, when his action in assumpsit fails for want of jurisdiction, sue the assignee of the wrong-doer for a conversion of the timber.
Error to Marquette.
F.O Clark, for plaintiff and appellant.
W.P. Healy, for defendants.
Plaintiff sued defendants, who are Canadian timber merchants, for the conversion of timber cut by Donald Cameron on plaintiff's land in the upper peninsula and sold to defendants by Cameron. The defence allowed in the circuit court was that plaintiff had elected to waive the tort and pursue Cameron in assumpsit, for the value of the timber. Suit was brought by attachment in plaintiff's name as a British subject residing in England against Cameron as a resident of Marquette, in the United States circuit court for the western district of Michigan, and levy was made on the property in dispute as Cameron's property. He gave bonds to the marshal and got it back and delivered it to defendants, who purchased and paid for it as lawfully his.
We have no doubt that after thus electing to treat the property as belonging to Cameron and suing him for its price plaintiff is estopped himself from asserting title against his vendees. They had a right to buy what plaintiff thus solemnly disclaimed as his own and asserted to be Cameron's property. He cannot dispute the change of title that he has encouraged them to act upon.
The case shows that the action in the United States court failed for a defect in jurisdiction over Cameron, who was an alien and not suable in that court by another alien. But this cannot so far as defendants are concerned affect the previous election to treat Cameron as owner. They dealt with property in accordance with plaintiff's own representations of record, and they cannot be damnified by his mistake in choosing a forum. He has still his action against Cameron in the state courts, and if the means are lost of following the property itself, they are lost by his own proceedings.
It was insisted on the argument that the statute of 1875 which allows a land-owner to waive a tort and sue in assumpsit was not designed to operate beyond the suit itself, and that it cannot affect other wrong-doers who are liable severally. It was therefore further...
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