Statement: — This is an action to quiet title in 160' acres of land in Eolette county, North Dakota. John Kelly made a homestead entry some three or four years before bis death; be died in 1902 without having made final proof. His heirs are tbe defendant, Mary Gottbrebt, a daughter, tbe defendants Frank Higgens and Frances Higgens, tbe husband and daughter, respectively, of a post deceased' daughter, and tbe plaintiffs, Anna Stoll and Loretta Erhart, the *160daughters of a prior deceased son. A short time before his death, this entryman made a will whereby he devised the homestead in question to the defendant, Mary Gottbreht and made other specific bequests therein, particularly, $50 in money to be paid each of the plaintiffs. The defendant, William Gottbreht, was designated as executor of this will. He kept this will in his possession for about two or three years. He then took the will to an attorney for probate. The will was lost by the attorney; it has never been probated. After the death of the entry-man, the defendants Mary Gottbreht and her husband, William Gottbreht, occupied this homestead. The defendant Mary Gottbreht later made final proof. The particular time and manner in which the same was made is not disclosed in the record. Patent was issued to the heirs of John Kelly, the entryman, on Dec. 1, 1904. From this patent, introduced in evidence, it appears that the same was issued to such heirs upon the claim of the heirs of said John Kelly having been duly established, and consummated in conformity with the law. The husband, William Gottbreht, testified that he made an agreement with his wife, Mary Gottbreht, to pay the obligations of the deceased, and to receive a deed from her of this land. That she made such deed. The deed, however, has been lost and was never recorded. He further testified that he went into possession of this land after the death of the entryman, and has farmed, or rented, it ever since. He also testified that he has paid the taxes on such land ever since 1903. Pursuant to the will, payment was made annually to the plaintiffs, of the interest, at 10 per cent, upon the bequests of $50, amounting to $10. Finally, in January, 1917, the bequest amounting to $110 including interest were paid. In December, 1916, this defendant, the husband, sent quitclaim deeds covering this land for execution to each of the plaintiffs. As the plaintiff, Loretta Erhart, testified, she and her sister then first knew about this real estate. The plaintiffs, at the time of the trial, were aged twenty-three and twenty-five years, respectively; they had received the bequests, interest, and principal, mostly through their mother, being minors for many years after the decease of the entryman. Both the mother and the daughter, the plaintiff, Loretta Erhart, testify that they knew nothing about this homestead; that the money for the bequests was received under the thought that it related to personal property, under the terms of the will.
*161This action, accordingly, in March, 1918, was instituted by the plaintiffs, as heirs, to quiet title in their respective undivided one-sixth interests, in the land. A cause of action was also interposed, for the value of the use and occupation of the land, as against the defendant Mary Gottbreht. The defendant, William Gottbreht, interposed an answer setting up title by reason of the will, the conveyance from his wife, and his payment of the taxes, and occupancy of the premises adversely for over ten years. The defendant Mary Gottbreht in her answer alleges also the will and the sale of the land to her husband. Upon these pleadings the issues were framed. In the trial court, findings were made quieting title in fee, in the defendant William Gottbreht. From the judgment rendered thereupon, the plaintiffs have appealed and demand in this court a trial de novo.
Contentions: — The plaintiffs, the appellants herein, contend that the trial court had not original jurisdiction in the probating of a will or in receiving the proof thereof as a last will. That such unprobated will was not color of title upon which might be predicated adverse possession under the statute: That no adverse possession has been shown in the record as against these plaintiffs as heirs.
The respondents contend that proof of the lost will was used only for the purpose of establishing color of title; that otherwise it is not denied that a will must be probated. It is contended, however, that the plaintiffs were estopped by receiving the bequests so made; that the record discloses a title established through adverse possession and the payment of taxes, under color of title, pursuant to § 5471, Comp. Laws 1913.
The consideration of two legal questions, presented upon this record, determine the issues and the contentions made, viz.:
1. The nature of the title conveyed by the patent.
2. The adverse possession shown.
1. Nature of title. — It is apparent that when the entryman died he did not possess the title to land involved. He then possessed such rights as an entryman has before final proof. 32 Cyc. 833; 8 Fed. Stat. Anno. 2d ed. p. 562. After his decease, his heirs or devisees may complete the statutory requirements and may make final proof. U. S. Rev. Stat. § 2291, Comp. Stat. § 4532, 8 Fed. Stat. Anno. 2d ed. 558; 37 Stat. at L. 132, chap. 166, Comp. Stat. § 4563, 8 Fed. Stat. Anno. 2d *162ed. p. 614. In making such final proof, such heirs or devisees take directly from the government as special purchasers or donees, and not by reason of their right in the estate of the deceased, Martyn v. Olson, 28 N. D. 317, L.R.A.1915B, 681, 148 N. W. 734; Martin v. Yager, 30 N. D. 577, 582, 153 N. W. 286. On the face of the patent in this case, not only was proof made, evidently, in behalf of the heirs of the deceased entryman, but, the patent, in fact, was issued to such heirs.
This patent on its face carried the title to the heirs of such entryman, not to the defendant William Gottbreht, or to the defendant Mary Gottbreht, excepting her interest as heir therein, 8 Fed. Stat. Anno. 2d ed. p. 566.
The will accordingly even though valid, and duly probated, did not have the effect of transferring from the deceased entryman his title in the premises to the devisee thereof. Gjerstadengen v. Van Duzen, 7 N. D. 612, 66 Am. St. Rep. 679, 76 N. W. 233.
Accordingly, upon the issuance of this patent, under which title is claimed either directly or through color of title, by all of the parties to this proceeding, the title was vested in the heirs of the deceased entry-man. The plaintiffs thereupon had each an undivided one-sixth interest in fee in such land. The defendant Mary Gottbreht, an undivided one-third interest therein. The heirs of such deceased entryman thereupon became and were cotenants in such land. 32 Cyc. 834, 1034.
2. The adverse possession. — It is deemed wholly immaterial to consider whether the claimed will constituted color of title or not. The only claim made by the respondents is that it does constitute color of title. Clearly, the title of the defendant William Gottbreht (as claimed), rests wholly, not only upon proper proof of color of title, but also upon the fundamental requisites necessary to establish title by adverse possession under the statutory provisions, which requires an actual open, adverse, and undisputed possession of land under color of title for a period of ten years, with payment of all taxes and assessments legally levied thereon. Comp. Laws 1913, § 5471. We are clearly of the opinion that the plaintiffs are not estopped to deny either the validity of the will, as title or color of title, or the sufficiency of the claimed acts of adverse possession. Gjerstadengen v. Hartzell, 9 N. D. 269, 274, 81 Am. St. Rep. 575, 83 N. W. 230. Nothing in the record is disclosed to show knowledge on the part of the plaintiffs, direct or *163indirect, concerning their rights in this homestead, or of the acts of the defendant William Gottbreht, and his wife, in regard thereto, prior to 1916.
Upon this record it is evident, under well-established principles of law, that the defendant William Gottbreht, has not established the hostile adverse possession required under the statute. As an alleged executor of a supposed will, he had possession of this land. After the patent was issued to the heirs, he had possession of this land as a cotenant, by reason of the alleged deed made by his wife, to him.
As cotenants, the possession of one was presumed to be the possession of all. Each cotenant was entitled to the possession of such land. In order to overcome this usual presumption and to start the statute to operate by adverse holding, it was necessary for the cotenants, claiming adversely, to perform or do some act in direct hostility to the claims of his other cotenants, so as to show in some way an ouster of the rights of such cotenants. This meant such an emphatic deprivation of the rights of the cotenants, as t'o show either direct knowledge to the other cotenants, of such claim, or of circumstances sufficient to establish such knowledge, or the means of the knowledge thereof. Ildvedsen v. First State Bank, 24 N. D. 227, 235, 139 N. W. 105; Lavin v. Kreger, 20 S. D. 80, 104 N. W. 909. See note in 109 Am. St. Rep. 609, 623. See 38 Cyc. 27; Reeves, Real Prop. p. 963; Tiffany, Real Prop. § 168, p. 390.
However, it may be contended that this rule does not apply for the reason that the defendant Wm. Gottbreht had received a deed from his wife of the whole fee; that therefore he was in the position of an independent grantee claiming to hold in severalty, and not required to disclose or show acts of ouster other than those required of any person claiming, independently, a prescriptive title.
Upon this record, the answer is that the defendant knew full well the title of the plaintiff as cotenant of his wife; as grantee of his wife, as the holder of an unrecorded deed, and as claimed executor of the estate, he was not in a position to claim the position of an independent grantee. Then he well knew that he was, in fact, a cotenant, of the plaintiffs. Under the circumstances he still had imposed upon him the obligation, in order to assert hostile possession, to bring home to his other cotenants knowledge of his claims by such means as to con*164stitute legal knowledge to his cotenants of his hostile intentions. (See Hvedsen v. First State Bank, supra. See Blessett v. Turcotte, 23 N. D. 417, 425, 136 N. W. 945; 38 Cyc. 36. See notes in Ann. Cas. 1915C, 1236, and 109 Am. St. Rep. 616.
,. This record does not disclose any attempt on the part of the defendants to give to the plaintiffs or even to their mother, who for many years was their natural guardian, any notice direct, or otherwise, of his intention to oust and deprive the plaintiffs of their undivided interest in this land. On the contrary, if any deduction is to be drawn from his actions it is to the effect that his conduct, with reference to any such information, served to keep from the plaintiffs or their mother the knowledge of the plaintiffs7 actual interest in the lands involved. Such conduct secretly and clandestinely pursued by one cotenant may not thus start in operation the statute concerning adverse possession so as to deprive the plaintiffs of their title without their knowledge, even though the pretended disseisor may operate under a so-termed color of title. See Enderlin Invest. Co. v. Nordhagen, 18 N. D. 517, 524, 123 N. W. 390.
Upon the issues in the record herein, this court is not able to determine the rights of the parties concerning the rents and profits received from, or the value of the use and occupation of, the land. This is a matter for proceedings between cotenants for an accounting or otherwise as provided for by law. See 1 Reeves, Real Prop. p. 691. See Tiffany, Real Prop. p. 692, § 169; 38 Cyc. 63.
It is ordered that the judgment of the trial court be vacated, and that judgment be entered adjudging the plaintiffs to be, each, the owner of an undivided one sixth, and the defendant William Gottbreht, the owner of an undivided one third, right, title, and interest in fee, in the land, free from any right, title, or interest on the part of the plaintiffs, or defendants, in respect thereto. Further that the plaintiff recover costs of both courts as against the defendants Mary Gottbreht and William Gottbreht, and that such judgment so to be entered shall be without prejudice to the institution of proper proceedings concerning the rights, and profits received from, or the value of the use and occupation of, the land, between the parties as cotenants.
Grace, J., concurs. Birdzeel, I., dissents.