full enjoyment of the estate devised. The opportunity, therefore, could not arise for the executor to retain the debt of the devisee to the testator out of any demand which the devisee might seek to enforce against the executor. If such a charge attaches against the land devised, it would be necessary for the executor to establish it by proceedings in which he is the actor. After diligent search, I have been unable to find a case in which an attempt has been made to charge a devisee of land with a debt due from the devisee to the testator, in the absence of language in the will manifesting the purpose of the testator to do so." The court, in conclusion, says: "In the absence of language in the testator's will to that effect, there is no authority for charging the devisee's debt upon land devised to him." ply to the interest of the distributee in the real estate of an intestate, or to the proceeds of the sale thereof. In Procter v. Newhall, 17 Mass. 81, in considering this same question, the court says: "The other objection would be fatal to the title of the tenant, if it were true that Joseph Hathorne had but a defeasible estate, as has been suggested; for the tenant has no greater or better estate than Joseph Hathorne had at the time of the attachment. But we are of opinion that his estate was no more subject to the debt formerly due to the intestate than it was to any other debt. In the division of real estate among heirs, no deduction can be made from the share of any one of them on account of any debt due from him to the estate. This can only be done in cases of advancement." In the case of Mann v. Mann, 12 Heisk. 245, it was held that the son's indebtedness to the father's estate is not a lien on the son's share of his father's realty, and that such share in the realty is subject to a race of diligence between the personal representatives of the father and other creditors of the son. In the American Law of Administration, by Woerner, (volume 2, § 564,) in speak If any right exists to have the proceeds of the land which descends to the heir, or is devised to the devisee, applied to the payment of a debt due the ancestor or testator in preference to other creditors, then the administrator has the right to have the estate charged with it, and a lien declared paramount to any other lien in favor of other creditors, whether the land being of the equitable doctrine of retainer, it sold for the payment of debts of the ancestor or testator or not. The right to set off a legacy or a distributive share of the assets arising from personal estate against the debt due from the heir or legatee is denominated the "doctrine of equitable retainer." In the case of Smith v. Kearney, 2 Barb. Ch. 533, the court holds that the principle of equitable retainer does not apply to a fund arising from the sale of real estate which descended to the debtor as one of the heirs at law of the testator, and which real estate has been converted into personalty by accident, or because the valid portions of the will could not be carried into effect in any other way than by a sale of the land, and that the proceeds of real estate thus converted into personalty are still to be considered as real estate, and as in no way connected with the funds which come to the hands of the executor for the purposes of the will. And I contend that the same is true in case of an administration. The administrator has no business with any portion of the real estate which descends to the heir. It comes to him by reason of the fact that he cannot sell but a sufficient amount to pay debts, and is compelled, in order to execute his trust, to sell more; and, when thus sold, the portion or the surplus above what is required to pay the debts retains its character as real estate, and, if applied, by order of the court, to pay debts, it must be applied to the payment of the same in the order which it would be if it were real estate, the prior incumbrances being first ordered satisfied. It must necessarily re- | tain its character as real estate. It is not distributed in like manner as personal assets. The administrator cannot mix the two, and distribute them. If he did, the widow would take one-third, but she has no interest in such surplus. It goes back to the person in whom the title was vested before the sale. In the case of Sartor v. Beaty, 25 S. C. 293, it was held that the doctrine of equitable retainer did not ap is said: "If the lands have been sold, and there is a residue of the proceeds for distribution, it has been held both that the administrator may retain to the extent of the debt due by the distributee, and, on the other hand, that, since in equity the converted estate retains its original character, the equitable doctrine of retainer does not extend to the proceeds of real estate." In support of the doctrine that it may be retained, the author cites but one case, and that is Nelson v. Murfee, 69 Ala. 598, in which it was held that, as against the heir, the executor could retain the amount; but in that case the court say: "Whether, when the heir is insolvent, and owes the estate of the ancestor, as in this case, the administrator has any prior right to demand payment out of lands descended, or whether it becomes a mere race of diligence between him and other creditors of the heir, is a question not raised by this record." And, by a diligent search for authorities, this is the only case that I have been able to find where the question has been considered, that any court has ever intimated that the doctrine applies in such a case as we have under consideration. See Hancock v. Hubbard, 19 Pick. 167; Fowler v. Fowler, 1 Hind. Pr. 601. In Pennsylvania it was held that the indebtedness was an advancement, and could be retained. Springer's Appeal, 29 Pa. St. 208. In Strong v. Bass, 35 Pa. St. 333, it was held, as we have herein before stated, that the doctrine applied in case of legacies, and I do not question that the doctrine does apply in case of legacies or advancement; and the authorities cited in support of the decision in the case of Koons v. Mellett, ante, 95, (this term,) go no further than to hold that the doctrine applies in cases of distributive shares of personal property legacies, and where the debt is an advancement. In exact accord with the unanimous holding of the courts of other states, this court has twice decided this question adversely to the majority opinion, and in accordance with what I believe to be the settled law. In the case of Campbell v. Martin, supra, Campbell, the appellant, recovered a judgment against Alexander C. Martin in the Washington circuit court on January 14, 1876. On June 1, 1876, Mason L. Martin, father of Alexander C. Martin, died testate, owning land in said Washington county, which he devised to his said son, Alexander C. James A. Martin was appointed administrator of the father's estate with the will annexed. Alexander C. was indebted to the father; and at the August term, 1878, of the Washington circuit court, the administrator recovered a judgment on said indebtedness to the estate. At the April term, 1879, the court ordered the administrator to retain and hold the real estate so devised to Alexander, giving him credit for its appraised value on the judgment against him in favor of the administrator. The proceedings in the court below were undoubtedly irregular; but this court, in deciding the case, expresses its views in regard to these judgment liens, and says: "There is some reason for the application of this doctrine to the payment of legacies by the executor, and especially so where the indebtedness of the legatee to the estate might be regarded as a total or partial ademption of the legacy. But we know of no reason whatever for the extension of this doctrine, and making it applicable to devisees of real estate. As a general rule, legacies are payable by the executor out of the testator's personal estate which may come to his hands to be administered; but ordinarily the executor has absolutely nothing to do with the real estate devised by his testator, unless it may be needed for the payment of the testator's debts. Otherwise the devise of the real estate will take effect at once upon the death of the testator, without any intervening act of the executor. Upon the facts stated in the complaint in the case at bar we are of opinion that the lien of the appellant's judgment upon the real estate devised to Alexander C. Martin was not, and could not be, divested, nor postponed to the lien of the junior judgment against him in favor of the administrator." The case of Ball v. Green, 90 Ind. 75, is a case involving exactly the same principle as the one under consideration; and it was held by a unanimous court that the mortgagee was entitled to the surplus. In that case the court well say: "No authority is cited to support this position, and we know of none; nor do we believe it can be maintained on principle. The administrator had authority to sell this land to pay the decedent's debts, but no power to sell in order to collect a claim from the owner. After the payment of the decedent's debts, the residue of the money, if any, will belong to Jesse Adams, and its retention by the administrator will not make the estate the debtor of Adams, nor will it make the administrator such debtor, except at the option of Adams. In addition to this, the appellee has a lien upon the money that is superior to any claim of the administrator, if indeed he has any, and which was not impaired or affected by the accidental circumstances that he had the custody of the money, and that Adams was indebted to him and to the estate. As against the appellee, in our opinion, he could not retain the money for the purpose of collecting from Adams claims due the estate. As to these he occupied no better position than any other creditor; and, as the appellee had acquired a specific lien, his clain must prevail." These two decisions have long since settled the doctrine in this state in accordance with the weight of authority, and they ought, in my opinion, to be adhered to. BERKSHIRE, J., concurs with OLDS, J. (118 N. Y. 281) DUNHAM V. TOWNSHEND et al.1 (Court of Appeals of New York, Second Division. Jan. 14, 1890.) EJECTMENT-ADVERSE POSSESSION-APPEAL-RE VIEW. 1. Where the person claiming title to land did not reside on it, but frequently visited her son, who did live there, and there was constant communication between them, it cannot be held that the son's possession was adverse. 2. Where on appeal it is urged, as ground for reversal, that a deed from the sheriff, of land sold to satisfy a judgment, was adjudged effectual as a conveyance, without producing the judgment in evidence, the court of appeals may examine a certified copy of the judgment roll, and, upon finding it regular in all respects, sustain the judgment of the court below. 3. It is no objection to a deed executed in 1835, by the person claiming title, thereto, that about 1850 the land in question was below high-water mark, and that the title, therefore, was in the city instead of the grantor; it appearing that the city had levied an assessment on the land, thereby disclaiming ownership therein, and that, moreover, prior to the date of the deed, the land was above the ordinary daily tide, and was not covered by water, except during occasional severe storms. Appeal from supreme court, general terin, first department. John Townshend, appellant, pro se. Abel Crook, for respondent. BROWN, J. This action was brought to recover the possession of an undivided onehalf of five lots of land, situated on the southerly side of Ninety-Ninth street, in the city of New York. The action was defended by the defendant Townshend, the other defendants being in the occupancy and possession of the land under him. Possession was demanded from these defendants before the commencement of the action, and refused. Townshend did not, in his answer, allege any ownership in the property. On the trial it appeared that he had taken a deed of an undivided onesixth of the property, but it was not shown that either of his grantors had any title whatever in or to the property attempted to be conveyed. The objection now made to the judgment consists wholly in defects alleged to exist in the plaintiff's title. The earliest conveyance produced by the plaintiff was a deed from Margaret McGowan to Edward Sandford, dated January 30, 1835. In this deed the grantor was described as "widow of Andrew McGowan, deceased, and the only child and heir at law of Samson Benson, deceased." The testimony showed that the original farm, which in 'Affirming 43 Hun, 580. 66 cluded the five lots which are the subject of | this suit, was known as the Benson Farm," and was owned by Samson Benson in his life-time. Margaret McGowan was Samson's daughter and heir. She had a son Andrew, the father of Henry P. McGowan, who was a witness on the trial. As early as 1825, Andrew McGowan resided at One Hundred and Fifth street and Second avenue, upon this farm. He cultivated the tillable land, and used the marshes and salt meadows for pastures and to cut grass therefrom. His occupation continued until 1833, when the farm was rented out. It was sold by Margaret McGowan in 1835. During her son's occupation of this part of the farm, Mrs. McGowan lived at her homestead at McGowan's pass, now a part of Central park. She visited her son frequently at the dwellinghouse on the farm, and there was constant 'communication between them. The objection is made that possession of the farm by Mrs. McGowan was not shown. We think this evidence sufficiently established possession of the land in Mrs. McGowan. The relations shown to exist between the mother and her son are entirely inconsistent with the claim that the son's possession was adverse to his mother's title, and show that he held under her and subordinate to her rights. Edward Sandford conveyed the property to Charles Henry Hall. On the trial the plaintiff introduced in evidence a deed from Jacob Acker, "late sheriff of the city and county of New York, to Isaac Adriance. This deed recited the issuing to the sheriff of an execution out of the superior court of the city of New York, at the suit of the president, directors, and company of the Mechanics' Bank of the City of New York, plaintiff, against Charles Henry Hall, defendant, with the usual directions to seize and sell the premises thereby conveyed; the sale thereof to one George Haus; and the redemption of the land by Isaac Adriance, the holder of a subsequent judgment against said Hall. It described and purported to convey the land in such a manner as to include the lots in controversy. An objection strenuously urged on the trial and at the general term against this deed, as a conveyance of the title, was based on the omission of the plaintiff to produce and read in evidence the judgment on which the execution under which the sale was made was stated to have been issued. On the argument in this court the respondent produced a certified copy of the judgment roll. The appellant objects to its reception, on the ground that it is improper for this court to act upon information thus obtained. While the production of record evidence is never allowed in an appellate court for the purpose of reversing a judgment, it is sometimes permitted for the purpose of sustaining a judgment. Stilwell v. Carpenter, 62 N. Y. 639; Day v. Town of New Lots, 107 N. Y. 157, 13 N. E. Rep. 915. This has frequently been decided in respect to records of judgments, exemplification of bankrupt discharges, certificates of naturalization, etc. Burt v. Place, 4 Wend. 591; Ritchie v. Putnam, 13 Wend. 524; Williams v. Wood, 14 Wend. 127; Jarvis v. Sewall, 40 Barb. 449; Dresser v. Brooks, 3 Barb. 429. Evidence of this character is received by the appellate court for the reason that, being in its nature incontrovertible, it would be idle to send the case back for a new trial for the sole purpose of admitting it. We think we may therefore recee and examine the judgment roll, and as it is regular in all respects, its production removes the objection heretofore urged to the sheriff's deed, and also the objection arising out of the general assignment of Hall for the benefit of creditors, as this assignment was fa date subsequent to the docketing of the judgment under which the sheriff's sale was made. The next objection taken to the plaintiff's title was that the land in dispute was below original high-water mark, and the title, therefore, was in the city of New York. There was no substantial dispute as to the facts on this question. The only witness called by the defendant on this subject was James E. Sewell, a city surveyor. He testified that Second avenue was graded between 1850 and 1853, and that before that work was commenced he examined the locality, and that, at the point where Ninety-Ninth street intersected Second avenue, high-water line was a little over a foot above the level of the marsh, and that the lots in controversy were about 13 inches below high-water mark. He knew nothing about the locality prior to the examination of the ground preparatory to grading Second avenue. As tending to contradict the effect of this testimony, it appeared that the city had levied an assessment on the lots in controversy for the expense of grading Second avenue, and had disclaimed any ownership therein. It further appeared, without contradiction, that prior to 1835 high-water mark was east of Second avenue, at Ninety-Ninth street, and that the meadows which included the lots in question were above the ordinary daily tide, and were not covered by water. except during occasional and severe easterly storms. Upon this testimony we do not think it was error for the court to hold that no title to the land was shown in the city. The important question was not where high-water mark was in 1850, or what effect the filling in and grading of streets over the meadows may have had on the flow of the tide, but was, rather, where ordinary high-water mark was during the occupancy of the farm by McGowan. This was shown by uncontradicted evidence to have been below the level of the lots in controversy. Title in the city could not, therefore, be predicated on the fact that the lots were originally within the line of the ordinary flow of the tides. This view of the case renders unnecessary any reference to the deed from the city to Perry, any further than to say that it was competent to show that the city made no claim to the land in dispute, and had conveyed to Perry, as a trustee for the plaintiff, for the purpose of removing any possible objection to the plaintiff's title. As the city had no title to the land, none passed to Perry by the deed, and it is of no importance in this action whether the conveyance from Perry's heirs to the plaintiff was sufficiently proven or not. Title and manager Daly's Theater, New York, and John Stetson, lessee Fifth Avenue Theater of New York, for themselves and their respective executors, administrators, and assigns, to-wit, viz.: Said Daly hereby sells to said Stetson the exclusive right to give performances of the plays of 'Pique' and possession were thus established in the plaintiff's grantors, and that title, by proper and sufficient conveyance, was shown to have become vested in the plaintiff. This was all prior to defendant's entry, and was sufficient to enable plaintiff to maintain ejectment against the defendant, who was a mere intruder, and whose en-Divorce' for thirty consecutive weeks, try on the lots was without a shadow of right, and threw upon him the burden of establishing a better title than that of the plaintiff. Carleton v. Darcy, 90 N. Y. 566-573; Stevens v. Hauser, 39 N. Y. 302. As already stated, he neither alleged nor gave evidence of any title to the land. His entry was wrongful, and his occupancy that of a trespasser. There was ample evidence of actual ouster of the plaintiff and a denial of her rights by the defendant. We find no error in the record of the trial, and the judgment should be affirmed, with costs. All concur. (118 N. Y. 269) DALY V. STETSON.1 * * during the theatrical season of 1883-4, commencing on or about Monday, October 22d, 1883, in all the cities and towns of the United States and Canadas, excepting the city of New York, * one performance each night to be given during such period. The said Stetson hereby agrees to pay said Daly the sum of two hundred dollars each week for thirty consecutive weeks, commencing on the first Saturday after said performance begins, payable to said Daly in the city of New York." The complaint further alleged that the defendant, though often requested so to do, had not paid the sums of money due under the agreement, or any part thereof, except five sums, of $200 each, paid respectively on the 30th (Court of Appeals of New York, Second Divis- day of October and the 5th, 10th, 17th, and ion. Jan. 14, 1890.) CONTRACTS-CONSTRUCTION. 1. Plaintiff entered into a contract by which he sold defendant the exclusive right to give performances of certain plays for 30 consecutive weeks during the theatrical season, one performance each night to be given during such period, and defendant agreed to pay plaintiff $200 "each week for 30 consecutive weeks, commencing on the first Saturday after said performance begins. Held, that plaintiff is entitled to recover $200 a week after the first performance, whether defendant continued to produce the plays each week or not. " 2. A contract was entered into between N. and L., a theatrical author, of Germany, by which the latter assigned to the former the exclusive right of performance of all plays which were or might be composed by him, also all property rights in such plays for the United States, so that N. exclusively should have the right to give to other stages in America the permission to perform said plays, to fix and determine the royalties for the same, and collect such royalties from the other managers; "in short, that Mr. N. is authorized to act as the sole proprietor of the same." L. reserved to himself certain royalties on the plays that should be performed by N., and a per cent. of the royalties N. might receive from other managers. The contract was to last for a certain time, after which it was to continue from year to year, unless revoked by one of the parties. Held that, there being evidence to show that the parties to the contract did not intend that N. should be anything more than the agent of L., he did not, under the clause of the contract giving him authority to act "as the sole proprietor" of the plays, acquire any absolute title thereto, but his power to make any disposition of the right to perform the plays ceased on the termination of the contract. Appeal from superior court of New York city, general term. A.J. Dittenhoefer, for appellant. Stephen H. Olin, for respondent. HAIGHT, J. This action was brought to recover a balance alleged to be due upon a contract. The complaint alleged that on or about the 1st day of October, 1883, the plaintiff and defendant made, signed, and delivered an agreement, the material portions of which are as follows: "Memorandum of agreement made this 1st day of October, 1883, by and between Augustin Daly, 'Affirming 54 N. Y. Super. Ct. 202. v.23N.E.no.5-24 24th days of November, 1883; and that there was still due and owing the sum of $5,000, besides interest, for which sum judgment was demanded. The answer does not deny the allegations of the complaint, further than that there was the sum of $5,000, besides interest, due and owing. Upon the trial the plaintiff's counsel opened the case to the jury; and it was then admitted that the interest upon the $5,000 claimed by the plaintiff amounted to the sum of $634.94. Thereupon the plaintiff rested, and the defendant's counsel moved to dismiss the complaint, on the ground that the plaintiff cannot recover, except upon the performances given by the defendant, and that it was incumbent upon the plaintiff to show that the defendant had given the performances; that the condition of the contract is that the defendant perform each week. This motion was denied, and an exception was taken, which presents the first question which we are called upon to consider. We do not understand that the right of the plaintiff to recover depends upon a condition that the defendant produces the plays each week. By the terms of the agreement the plaintiff sold to the defendant the exclusive right to give performances of the plays for 30 consecutive weeks, commencing on or about Monday, October 22, 1883. One performance was to be given each night during that period, and the defendant agreed to pay the plaintiff the sum of $200 each week for 30 consecutive weeks, commencing on the first Saturday after the performances began. The performances began as contemplated by the agreement, and for five weeks the contract price was paid. If after that time the defendant neglected or refused to produce the plays, it was a breach of the contract on his part, and does not shield him from his obligation to pay the stipulated price for each week thereafter until the end of the 30 consecutive weeks mentioned in the contract. It therefore appears to us that the motion was properly denied. season; at latest, till the first of July. Mr L'Arronge binds himself to deliver to Mr. Neuendorff the manuscript of each play, at latest, four weeks after the first performance of said play in Germany or Austria. The duration of this contract is determined for the time from July 1st, 1878, till July 1st, 1880, after the termination of which term it continues from year to year, unless revoked by one of the contractors on or before the first of April of each year. Subsequently, and on the 27th day of December, 1881, Neuendorff entered into a written agreement with the plaintiff, reciting that, whereas said Neuendorff is the agent of Adolph L'Arronge and several other dramatic authors residing on the continent of Europe, for the production, sale, and licensing of the performances and translations of their unprinted and unpublished plays and dramas throughout the United States, and also for the dominion of Canada, it was agreed, in consideration of one dollar paid to Neuendorff individually, and one dollar paid to him as agent of the persons named as authors, he, for himself, and as agent of the authors named, agreed to deliver to the plaintiff a copy of every unpublished or unprinted play or dramatic composition written by the authors named, or either of them, of which he (Neuendorff) may become the agent, within a reasonable time after he shall receive the same for translation into the English language, and assign and grant unto the plaintiff the sole and exclusive right of making adaptations of such plays in English, and of performing them on the stage, or of causing or permit ter-claims set forth in the defendant's answer. It appears that the plaintiff was a theatrical manager, and, as such, had produced at his theatre a play known as "Dollars and Sense," of which one Adolph L'Arronge, of the city of Berlin, Germany, was the author, on which his gross receipts amounted to the sum of $50,383.76; that he had also produced another play, known as "7-20-8, " of which F. Von Schoenthan, of Berlin, was the author, the gross receipts of which amounted to the sum of $49,982.62; and also another play, under the name of "The Passing Regiment," by the last-named author, the gross receipts of which amounted to $1,870. It is claimed that one Adolph Neuendorff, of the city of New York, was entitled to a royalty of 5 per cent. upon the gross receipts for the production of these plays, and that his claim has been assigned, and is now vested in the defendant, while, on the other hand, it is claimed on behalf of the plaintiff that the right to produce these plays was obtained from the authors, through their agent in Berlin, and that the royalty accrued has been paid to them. It thus becomes necessary to consider the nature of the defendant's claim to the royalties. On the 15th of June, 1878, at Berlin, a contract was entered into in writing between Adolph L'Arronge and Adolph Neuendorff, of which the following is a translation: "Between Mr. Ad. Neuendorff, manager of the Germania Theater, in New York, and the dramatic author, Mr. Adolph L'Arronge, in Berlin, is this day the following | contract agreed upon and closed: After Mr. Ad. Neuendorff, to the other contract-ting to be performed such English versions or, Mr. A. L'Arronge, has paid the sum of five marks in hand, Mr. L'Arronge assigns to Mr. Ad. Neuendorff, first, for the Germania Theater, in New York, managed by Mr. A. Neuendoff, the exclusive right of performance of all plays, dramas, and comedies composed or arranged by Mr. A. L'Arronge, and which from to-day forth will be written by Mr. A. L'Arronge, and also, that formerly composed play by Mr. L'Arronge, called 'Mein Leopold.' He furthermore assigns to Mr. Ad. Neuendorff, exclusively, all property rights on all these plays for the United States of America, so that Mr. Neuendorff exclusively has the right to give to other stages in North America, German as well as English, the permission to perform said plays, to fix and determine the royalties for the same, and collect such royalties from the other managers, and, furthermore, to have the plays translated and adapted; in short, that Mr. Neuendorff is authorized to act as the sole proprietor of the same. Mr. Neuendorff pays to Mr. L'Arronge, for every performance of these new plays at the Germania Theater in New York, a royalty of five percent. of the gross receipts. All other moneys which Mr. Neuendorff will receive by disposing of his property right to these plays to other theaters of the United States are to be divided equally between Mr. Neuendorff and Mr. L'Arronge, after deducting, first of all, expenses for translation and adaptation, or cost arising from other causes. The account and payment of all moneys due to Mr. L'Arronge must be made every year, after the close of the or adaptations of them throughout the United States and Canada, upon payment to said Neuendorff, as such agent as aforesaid, for every performance in the city of New York of either of such plays performed by the plaintiff, a royalty or sum equal to 5 per cent. of the gross receipts of such performances, payable nightly, and of onehalf of the net royalties received by the plaintiff for all performances under his licenses given by other persons in any other part of the United States or Canada. It was further provided that this agreement should apply to all plays and dramatic compositions of the said authors which shall be produced by the plaintiff at any time between the 1st day of January, 1882, and the last day of December, 1884, and that, in the event of failure of the plaintiff to make the payments stipulated, Neuendorff, as the agent of the authors, shall have the right to stop and enjoin each and every performance of the plays. Afterwards, and about the month of November, 1882, L'Arronge completed a play known in German as "Die Sorglosen, which he sent to Mr. Neuendorff, who delivered the same to Mr. Lester Wallack, a theatrical manager in the city of New York, who kept the same until the latter part of March, or the 1st of April, 1883, and then returned it to him. In the mean time the plaintiff, hearing of this play, called upon Neuendorff for it, and was informed that he had delivered the same to Mr. Wallack, and, when questioned why he had done so, stated that he had done it in consequence of a direction from Mr. L'Ar |