¶1This 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.
¶2The cause was tried before Judge Wixson, in the Tuscola circuit, by jury, the defendant prevailed, and plaintiff brings error.
¶3Benjamin 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.
¶4In 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.'
¶5In the fall of 1884 the youngest two of the minors had *53arrived at age, and thereafter sold and conveyed their interest in all their father’s estate to the plaintiff.
¶6The 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.
¶7The 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.
¶8Under 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.
¶9The 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.
¶10We 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.
¶11The 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*54land, 38 Mich. 168; Tharp v. Allen, 46 Id. 389; Sherrid v. Southwick, 43 Id. 515.
¶12Tlie judgment must be affirmed.