Cleaver v. Bigelow

Sherwood, J. This case is ejectment, commenced by declaration to recover the undivided half, of the S. W. ¿ of the S. W. i of section 1, in township 13 N., of range 9 E. Plea, general issue; and, with same, claim was made and filed for improvements, as provided in such cases by statute. The cause was tried before Judge Wixson, in the Tuscola circuit, by jury, the defendant prevailed, and plaintiff brings error. Benjamin Ellsworth owned the property, and died in March, 1863, leaving a widow and four children, three of whom were minors. The widow again married — a Mr. Hartley — and in 1876 she was appointed guardian of the minors. Soon after the marriage, the adult heir, Joseph Ellsworth, conveyed his interest in 60 acres of land owned by his father when he died, lying in an adjoining township, to Mrs. Hartley. The consideration of this deed was a conveyance by quitclaim given by Mrs. Hartley, as guardian for the minor children, of their interest in the 40 acres in dispute to Joseph Ellsworth. In 1879, Joseph Ellsworth conveyed the land in dispute by warranty deed to the defendant, Bigelow, who soon thereafter went into possession thereof; he giving, as the purchase price therefor, 40 acres of land elsewhere and $250.' In the fall of 1884 the youngest two of the minors had [53] arrived at age, and thereafter sold and conveyed their interest in all their father’s estate to the plaintiff. The defendant and his-wife, at the time this suit was brought, had been in the possession and occupancy of the 40 acres upon which they lived, under his deed, more than a year, as their homestead, and neither of them had any other homestead at that time. The testimony in the case is uncontroverted that the premises in. question, the undivided half of which the plaintiff seeks to recover, were purchased by the defendant under a .warranty deed, in good faith,- and for a valuable -consideration ; that the land thus purchased by him was worth less than $1,500, and consisted of 40 acres of farming land ; that it was possessed and occupied by the defendant and his wife jointly as their homestead, and that they claimed it as such; that the defendant claimed to be the owner in fee of the land, and that the plaintiff and his counsel knew these facts when the suit was brought. Under these circumstances, we think the wife was a necessary party in the case, and should have been made defendant with her husband: Hodson v. Van Fossen, 26 Mich. 68; Bunce v. Bidwell, 43 Id. 542; Sayles v. Curtis, 45 Id. 279; Connor v. Nichols, 31 Ill. 148; Hoskins v. Litchfield, Id. 137; Girzi v. Carey, 53 Mich. 447. The action of ejectment is a possessory one; and, whether the husband or wife owned the land in question in fee or otherwise, they were equally interested In the homestead, which involves the question of possession. We have discovered no error committed, to the prejudice of the plaintiff, in the admission of the testimony, and the jury found, under proper instruction from the -court, that the premises were the homestead of the defendant and his wife. The character of the occupancy and possession being thus established, even though the defendant was but tenant in common claiming his interest in fee, he would still be entitled to claim his homestead right, and to the extent of that his .wife would be equally -interested with him : Lozo v. Suther [54] land, 38 Mich. 168; Tharp v. Allen, 46 Id. 389; Sherrid v. Southwick, 43 Id. 515. Tlie judgment must be affirmed. The other Justices concurred.