We are of opinion, that the defendant, Neill, was not a competent witness for his co-defendant. He had not been dismissed from the suit. Notwithstanding he had filed a disclaimer, that did not release him from liability for costs theretofore incurred, and damages for the alleged trespass. He thought himself disinterested; but it is the fact of interest, and not the opinion of the witness, as to his interest, that determines the question of his competency. (1 Grreenl. Ev. § 387.)
If he had been a competent witness, his oral testimony was not admissible to prove the terms of a tenancy, created by a written lease. We must suppose, that the lease contained the terms and conditions upon which the tenant held the possession; and that was better evidence of its contents, than the recollection of the witness. When, therefore, he disclosed the existence of the writing, his testimony respecting its contents ought to have been excluded. The ruling of the court, admitting the witness to testify, and refusing to exclude his testimony respecting the terms of the lease, will require a reversal of the judgment.
There are other questions presented by the record, upon which the decision of the case must ultimately depend, which it is proper to notice. The statute of limitations of three years, was the defence mainly relied on at the trial, and upon which the case was decided for the defendants. To make out this defence, it was incumbent on the defendants to prove, by competent evidence, that they held the possession during the prescribed period, under title or color of title. The patent, issued to the defendant, Miller, as assignee of Daniels, in 1848, was no evidence that the defendants were the owners of the certificate upon which it issued, during the period of their alleged possession anterior to its date, or that previously to its issuance, they had title, or color of title, to the land. They must have owned the certificate, to render their possession of any avail; and, ordinarily, such ownership *423would be susceptible of proof by written evidence, which should have been produced.
A question of more difficulty is, as to the effect of the deed of relinquishment, by the grantee to the government, of the 3d of June, 1843, of the original grant, under which the plaintiff claims. This instrument was excluded by the court, it is supposed, upon the doubt expressed in our opinion, when the case was before us on a former appeal. (Dikes v. Miller and Neill, 11 Texas Rep. 98.) It is now insisted for the appellee, that the ruling was erroneous; but we are referred to no authority in point, upon the question. It is not doubted, that the State has capacity to take. But in order to pass the title by deed of bargain and sale or release, delivery of the deed is essential; and to a complete delivery, an acceptance, either express or implied, on the part of the grantee, is necessary. Has the commissioner of the General Land Office authority to accept a grant or deed of relinquishment on behalf of the State, of lands which have been granted to individuals? No person can be made a grantee against his will; but a deed may operate by a presumed assent, until a dissent or disclaimer appears. When a conveyance is made to any person, his assent to it, it is said, is presumed: 1. Because there is a strong intendment of law, that it is for his benefit to take, and no one can be supposed to be unwilling to do that which is for his advantage: 2. Because it would seem incongruous and absurd, that when a conveyance is completely executed on the part of the grantor, the estate should continue in him : 3. Because it is contrary to the policy of the law to permit the freehold to remain in suspense and uncertainty. (Bouv. Law Dict., tit. Assent, and cases cited.) The deed of relinquishment may, perhaps, be effectual to revest the title in the government, on the ground of a presumed assent. The re-granting of the land, if authorized by the law, would seem to warrant that conclusion.
It will be sufficient for the decision of this case, if, by the act of relinquishment the grantee lost the title, whether it was reacquired by the government, as lands conveyed to the State, or become derelict, or in whatever manner, since the plaintiff can *424recover only upon the strength of his own title. Easements and incorporeal rights annexed to • land, may be lost by abandonment. So may an incipient "right to land, as a location and survey, or other merely equitable title, not perfected into a grant, or vested by deed. (4 Kent, Com. 448; 17 Mass. 297; 23 Pick. 216; 5 Serg. & R. 215; 2 Hilliard on Real Property, 3, 12, 13, 79, 98.)
Legal rights, when once vested, must be divested according to law, but equitable rights may be abandoned. (Picket v. Dowdall, 2 Wash. Va. Rep. 106.) Yet, if a person having the disposing power absolutely, does an act, sufficient in itself, legally to divest his title, with the express intention of relinquishing and abandoning the property, it is not easy to perceive why he may not do so. Abandonment is the relinquishment of a right; the giving up of something to which one is entitled. If the owner-sees proper to abandon his property, and evidences his intention by an act legally sufficient to vest or divest the ownership, why may he not do so in the case of land, as well as of a chattel. It might go to the government, instead of the first occupant, upon the principle upon which land escheated, or become derelict, belongs to the State. But I do not perceive, that that would affect the question of power in the owner to abandon the property.
The only instance, I am aware of, in which land has been supposed to be acquired by government by dereliction, is the case of lands left by the sea. If the sea suddenly retires below the usual water mark, leaving terra firma, and making the dereliction sudden and considerable, it belongs to the king. (2 Bl. Com. 262.) In the opinion of the Supreme Court, in Hawkins v. Barney’s Lessee, 5 Pet. 467, it appears to have been considered that the principle of dereliction may be applicable to the loss and acquisition of title by statutes of limitation. The court said, “the right to appropriate a derelict, is one of universal law, well known to the civil law, the common law, and to all law; it existed in a state of nature, and is only modified by society, according to the discretion of each community. What is the evidence of an individual having abandoned his rights of property ? It is *425clear that the subject is one over which every community has a right to make a rule for itself; and if the State of Kentucky has established the rule of seven years’ negligence to pursue a remedy, there can be but one question made upon the right to do so,” &c.
It would seem, that there is nothing in principle, to prevent the owner from abandoning his right of property in land, provided the intention to do so be evidenced by an act or deed legally sufficient to operate a divestiture of his title.
The question of the effect to be given to the deed of relinquishment in this case, we have thought not free from difficulty. No authority in point has been cited by counsel, and our own examination has furnished none. With the lights I have, I incline to the opinion, that the making of the deed of relinquishment, and depositing it, with the original title, in the General Land Office, under the circumstances, was sufficient to divest the title of the grantee, and reinvest it in the government; whether the land became re-annexed to the public domain, or not, is not material to the decision of this case. But as neither examination by counsel, nor our own examination, has furnished us with the principle and authority upon which to rest its decision with entire confidence, and further light may be elicited upon another trial, we forbear to express a final opinion, but leave the question open for further examination. Its decision may be decisive of the case, and we think it proper, therefore, that counsel should have the opportunity of giving it the- attention which its novelty and importance would seem to warrant, and which they may do in time to avoid the occasion for another appeal.
If the grantee parted with his title by the deed of relinquishment, it would seem that the plaintiff can have no title by which to maintain the action. He claims under a subsequent conveyance from the grantee, and by quit-claim deeds. And it is said, the grantee in a quit-claim deed, takes the risk of the title, unless there is fraud. (2 Hilliard, Real Prop. 318, n.; Snyder v. Laframboise, 1 Breese, Ill. Rep. 270; Doyle v. Knapp, 3 Scam. 338.) Any expressions in the opinion delivered upon the former *426appeal, which may seem variant from this opinion, will be considered, in so far, modified.
We are of opinion that the judgment be reversed and the cause remanded for further proceedings.
Reversed and remanded.