(dissenting). This is an action to determine adverse claims to a quarter section of land in Rolette county. The trial court found, and the evidence establishes, the following material facts:
One John Kelly entered the land in question under the homestead laws of the United States of America. On January 23, 1902, he died without having made final proof. Kelly was the father of the defendant Mary Gottbreht, and the grandfather of the plaintiffs, Anna Stoll and Loretta Erhart. Mary Gottbreht had been caring for her father for some time prior to his death. He died in her home in Rolette county. Shortly prior to his death he executed a will and testament wherein he devised the homestead to the defendant Mary Gottbreht. He also made certain bequests, among others, one of $50 to each of the plaintiffs, with the proviso that they were to be paid interest thereon annually at the rate of 10 per cent until the principal wTas paid. The defendant Mary Gottbreht kept up the improvements on the laud in controversy and made final proof thereon in 1902. Shortly thereafter she transferred it to her husband, William Gottbreht, by deed of conveyance. After Kelly’s death the will was delivered to an attorney located at Rolla, the county seat of Rolette county, in order that he *166might institute probate proceedings. No proceedings were brought, and apparently the will was lost by the attorney, who later left the state. The defendant William Gottbreht took possession of the premises under the deed. He farmed the same during the farming season of 1902, and has since remained in actual, open, and exclusive possession. He has treated the land as his own in every respect. He has, in his own name, paid all taxes and assessments levied thereon. He has made no accounting to anyone, but has retained whatever profits, and paid whatever losses, have been incident to the farming of the premises. For more than fifteen years prior to the commencement of this action he had been in possession, and in every possible manner openly and notoriously asserting title to the entire tract. It is undisputed that the two plaintiffs were each paid interest on their respective legacies at the rate of 10 per cent; that they understood that they received this as interest upon such legacies in accordance with their grandfather’s will; that in January, 1917, the attorney for the defendants Gottbreht, prepared and sent quitclaim deeds to a bank in Nebraska (where plaintiffs reside), accompanied by draft for the amount of the legacies and one year’s interest; that he wrote the two plaintiffs notifying them of this and requested that they call at the bank and execute the quitclaim deeds; that they called at the bank and received and cashed the draft, but refused to execute the deeds, and later brought this action.
Upon these facts the trial court concluded that the defendant— William Gottbreht is the owner of the land in question by virtue of § 5471, Comp. Laws 1913, which provides: “All titles to real property vested in any person or persons who have been or hereafter may be in actual open, adverse, and undisputed possession of the land under such title for a period of ten years and shall have paid all taxes and assessments legally levied thereon, shall be and the same are declared good and valid in law, any law to the contrary notwithstanding.”
The plaintiffs appealed, and a majority-of the court are of the' opinion that the judgment should be reversed and the plaintiffs awarded the relief demanded in their complaint.
In the majority opinion it is said:
“The consideration of two legal questions presented upon this record determine the issues and the contentions made, viz.:
*167“1. The nature of the title conveyed by tbe patent.
“2. The adverse possession shown.”
Upon tbe first proposition tbe majority opinion says: “When tbe entryman died be did not possess the title to land involved. He then possessed such rights as an entryman has before final proof. . . . After bis decease, bis heirs or devisees may complete tbe statutory requirements and may make final proof. ... In making such final proof, such heirs or devisees take directly from tbe government as special purchasers or donees, and not by reason of their right in tbe estate of tbe deceased.” With this statement I agree. Tbe majority opinion continues:
“This patent on its face carried tbe title to tbe heirs of such entry-man, not to tbe defendant, Wm. Gottbrebt, or to tbe defendant Mary Gottbrebt, excepting her interest as heir therein. 8 Fed. Stat. Anno. 2d ed. p. 566.
Tbe will accordingly, even though valid and duly probated, did not have tbe effect of transferring from tbe deceased entryman bis title in tbe premises to tbe devisee thereof. Gjerstadengen v. Van Duzen, 7 N. D. 612, 66 Am. St. Rep. 679, 76 N. W. 233.
Accordingly, upon tbe issuance of this patent, under which title is claimed, either directly, or through color of title, by all of tbe parties to this proceeding, tbe title was vested in tbe heirs of tbe deceased entryman. Tbe plaintiffs thereupon bad each an undivided one-sixth interest in fee in such land. Tbe defendant Mary Gottbrebt an undivided one-third interest therein. Tbe heirs of such deceased entry-man thereupon became and were cotenants in such land.”
I do not agree with tbe majority members as to tbe effect which they attribute to tbe fact that tbe patent was issued to “tbe heirs of John Kelly.”
Section 2291, U. S. Rev. Stat., Comp. Stat. § 4532, 8 Fed. Stat. Anno. 2d ed. p. 557, provides that after tbe expiration of tbe prescribed time “tbe person making such entry, or if be be dead, bis widow, or, in case of her death, bis heirs or devisee,” upon proper proof being submitted, shall be entitled to a patent as in other cases provided by law.
Section 2292, U. S. Rev. Stat., Comp. Stat. § 4533, 8 Fed. Stat. Anno. 2d ed. p. 571, gives a priority in favor of infant children, in case *168both father and mother are dead. The two sections were construed by the Supreme Court of the United States in Bernier v. Bernier, 147 U. S. 242, 37 L. ed. 152, 13 Sup. Ct. Rep. 244. According to that decision, the rights to the homestead of a deceased entryman accrue in the following order:
First, to the widow, if there be one; second, to the minor children, and, if the children are partly minors and partly adults, then in equal shares to each without regard to minority; third, to the devisee, if there be one; fourth, to the heirs. Hays v. Wyatt, 19 Idaho, 544, 552, 32 L.R.A.(N.S.) 397, 115 Pac. 13.
In the case of Re Dodge, 1 Land Dec. 47, the Commissioner of the General Land Office ruled that “the devisee of a homestead claimant is entitled to all the privileges that would descend to the heirs.” See also, Allsop v. Dumas, 2 Land Dec. 82; Winters v. Jordan, 2 Land Dec. 85; Eberhardt v. Selich, 33 Land Dec. 342. In Eberhardt v. Selich, supra, the entryman devised his homestead to the Evangelical Lutheran Zions Church, of which congregation he was a member, with directions that at the expiration of a period of twelve years the land should be turned over to the Missionary Board of the Synod of Ohio and other states, and that said board should then become the owner of the land. In an exhaustive opinion the Secretary of the Interior sustained the rights of the devisee.
The Land Department has repeatedly ruled that it will not attempt to determine what heirs or devisees, or whether heirs or devisees, are entitled to the land. In the case of Re Eustance, 40 Land Dec. 628, patent had been issued generally to the heirs of the deceased entry-woman. Subsequently an application was made for a cancelation of the patent issued, and for the issuance of a new patent to one Matilda Peterson, as devisee. The application was accompanied by the patent, a certified copy of the will, and a deed reconveying the land to the United States. In denying the application the Secretary of the Interior said: “It is clear, therefore, that the department would have no authority to cancel the patent upon the present showing, arid it would decline to cancel it upon any showing, as such action would involve an adjudication and finding as to who the heirs are, which the department declines to undertake. It would still be necessary, even if the old patent were canceled and a new one issued to the heirs or devisees, to *169resort to court procedure for determination as to the proper claimant, or claimants, under the patent and their respective interests. It is suggested that the proper procedure for. the petitioner is, in case she claims to be the sole and only proper claimant of the land involved, to file a bill in equity in the proper local court to have the title declared vested in her.”
And when patent was issued for the land involved in Eberhardt v. Selich, 33 Land Dec. 342, wherein the rights of the devisee had been sustained in a contest proceeding, the department refused to issue patent to the devisee, and issued patent, following the language of the statute, to “the heirs or devisees of Julius Selich.”
This policy of the Land Department has been recognized by the different courts that have had occasion to consider the matter. See Hays v. Wyatt, supra; Cole v. Cole, 98 Neb. 674, 154 N. W. 248; Anderson v. Muhr, 36 Okla. 184, 128 Pac. 296. See also Theisen v. Qualley, 42 S. D. 367, 175 N. W. 556.
In Cole v. Cole, 98 Neb. 674, 154 N. W. 248, the entryman made a will, whereby he devised his homestead to his son. The son later made final proof, and obtained a patent running to “the heirs of Eleazor Cole.” In making proof he failed to present the will or call the attention of the officials of the Land Department to the fact that a will had been made. Later the son, who had been named as devisee in such will, brought an action to quiet title to the land, naming the other heirs of the decedent as parties defendant. The supreme court of Nebraska held: “The fact that when the devisee applies for a patent he fails to present the will of the decedent to the Land Department will not, in the absence of a plea and proof of facts constituting an estoppel, defeat his right to have his title quieted in the proper local court.”
Under the Federal statutes, and the decisions interpretative thereof,, the following propositions are established:
(1) An entryman, who, at the time of his death, has neither wife nor minor children, may devise his homestead.
(2) Where an entryman dies, and final proof is made either by an heir or a devisee the Land Department will not attempt to determine what heir or heirs, or devisee or devisees, or whether heirs or devisees are entitled to the land. Patent will be issued either to the heirs generally, or to the heirs or devisees of the deceased, leaving to the local *170courts to identify the parties and determine their respective interests.
(3) Where an entryman, who has neither wife nor minor children, devises his homestead, the patent inures to the benefit of the devisee only.
(4) Neither the heirs nor the devisees take by virtue of the law of the state where the land is located. They take by virtue of the Federal statutes as successors of the original entryman. The patent issued by the Land Department whether issued to the heirs generally or to the heirs or devisees inures to the benefit of, and vests title, in the person or persons named in the Federal statute.
Clearly no inference, adverse to the .plaintiff, can or should be drawn in this case from the fact that the patent is issued generally to the heirs of John Kelly. The patent by virtue of the Federal statute inured to the benefit of the person named in such statute as successor of the entryman, and vested the title in such person. If there was a devisee the patent inured to the benefit of si:ch devisee. For, as was said by the South Dakota supreme court in Theisen v. Qualley, supra, “there can be no heirs where there is a devisee.”
The trial court found, and the majority opinion also finds, that John Kelly made a will whereby he devised his homestead to his daughter, Mary Gottbreht. It is true the will was never probated. But the question here is not whether there was a valid will, but whether the will and the deed executed by Mary Gottbreht to her husband, William Gottbreht, gave a color of title upon which his claim of title by adverse possession under § 5471, Comp. Laws 1913, may rest. Color of title has been said to be “that which gives the semblance or appearance of title, but is not title in fact; that which, on its face, professes to pass title, but fails to do so because-of want of title in the person from whom it comes or the employment of an ineffective means of conveyance.” 1 R. C. L. p. 707. “If an instrument actually passes the title, it is clear that it is not ‘color of title.’ The term implies that a valid title has not passed.” 1 R. C. L. p. 707. In Power v. Kitching, 10 N. D. 254, 88 Am. St. Rep. 691, 86 N. W. 737, this court held that a tax deed void on its face constituted color of title under the statute. In Petit v. Black, 13 Neb. 142, 12 N. W. 841, the supreme court of Nebraska held that a will which had not been admitted to probate, and hence was inadmissible as evidence of, and ineffectual to pass, title *171to real estate, was nevertheless sufficient as a claim of right upon which a title by adverse possession might he predicated. It is generally held that a deed which purports to convey title will give color of title, although it be not acknowledged, or although it be defectively acknowledged. 2 C. J. 181. And in the absence of any statute expressly or impliedly providing otherwise, an unregistered deed will give color of title. Ibid. So will a lost deed, which is proved to have been executed and delivered. 2 C. J. 191.
“In order that a deed may give color of title it is not necessary that the grantor should have had title either to the whole or to any part of the land conveyed, unless there is some statute from which this requirement may be inferred. A deed from a mere volunteer is good color of title. A title founded on adverse possession under a deed which purports to convey the title is wholly independent of prior conveyances or of the grantor’s actual title.” 2 C. J. 184, § 351. “Where real estate is held in common, and one tenant assumes to convey the entire estate and does convey it by metes and bounds, the deed will give color of title as to the whole tract, and an entry by the purchaser thereunder claiming title to the whole will operate as an actual ouster and disseisin of the cotenant.” 2 C. J. 185, § 355. See also Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; Lloyd v. Mills, 68 W. Va. 241, 32 L.R.A.(N.S.) 702, 69 S. E. 1094; Gardiner v. Hinton, 86 Miss. 604, 109 Am. St. Rep. 726, 38 So. 779.
It seems to me that the instruments under which the defendant William Gottbreht entered into and has remained in possession of the premises, gave him suffcient color of title upon which to build a claim of ownership by adverse possession under § 5471, supra.
But the majority members say that in any event no adverse possession has been shown. This holding is predicated upon the promise that the defendants originally entered into possession of the premises in controversy as cotenants of the plaintiffs. The majority members arrive at their conclusion by applying the rules applicable to a case where one who has originally entered into, and remained in, possession of premises as a tenant in common, seeks to assert title by adverse possession against his former cotenants. Of course in such case he is presumed to continue in possession in the same character in which he originally entered, and his possession does not become adverse unless *172and until lie does something which in effect amounts to an ouster of his cotenants. But the defendants in this case did not enter into possession of the premises with the understanding that they were eotenants of the plaintiffs or of anyone else. No one can doubt that the defendants have all the time supposed that they were the sole owners of the premises. They entered into possession as owners. From the outset they claimed the whole estate. They never for a moment supposed or recognized that the plaintiffs had any interest in the land. They knew that John Kelly had devised the land to his daughter Mary Gottbreht. They assumed that upon complying with the law and obtaining title from the United States government she would and did become the absolute owner of the land free of all claims on the part of any of the heirs. Mary Gottbreht assumed that sh¿ was the sole owner of the premises when she conveyed the tract to her husband. He assumed that he took a fee-simple title to the whole tract. From the moment of the original entry, the possession of each of the defendants was antagonistic to the claims of the plaintiffs or any of the other persons claiming to be heirs of John Kelly. And since the entry, every moment of occupancy has been a continual assertion of exclusive ownership of the premises.
In these circumstances I believe that the trial court was right in holding that the defendant William Gottbreht had been in adverse possession of the premises from 1902; and that the title which he claimed had ripened and might be asserted against the plaintiffs. See Ann. Cas. 1915C, p. 1236; 1 Cyc. 1078, 1079; Parker v. Merrimack River Locks & Canals, 3 Met. 91, 37 Am. Dec. 121; Dubois v. Campau, 28 Mich. 304; Fuller v. Swensberg, 106 Mich. 305, 58 Am. St. Rep. 481, 64 N. W. 463. See also Beitz v. Buendiger, 144 Minn. 52, 174 N. W. 440; Hahn v. Keith, 170 Wis. 524, 174 N. W. 551; Theisen v. Qualley, 42 S. D. 367, 175 N. W. 556.
Birdzell, J., concurs.