This is a real action and comes to the law court with the stipulation that judgment shall be rendered " upon the facts and so much of the testimony as is legally admissible. ” No question is raised as to the competency of any of the testimony, no suggestion of any fact in dispute.
The defence is the general issue with a brief statement under Bvhich the defendants claim certain rights in the premises which are specifically described, and disclaim the residue. No objection is made as to the time when this disclaimer was filed. To it the-plaintiff files a counter brief statement, alleging in substance, that at the date of the writ, and before and since, the defendants did claim right, title and interest in said promises, and were in-the possession and occupation of the same, Thus is raised the real issue between the parties, and that is the title to the property described in the defendants’ brief statement, and whether the defendants were in possession of, or claiming title to that part* disclaimed.
It may be that the brief statement on either side is not technically accurate. But if, under the stipulations in the report, any pleadings are required, these are sufficient to direct the attention of the court to the real issue, and lay the foundalion in the record for the proper judgment.
The case shows that in February, 1852, school district number one, in Dover, acquired an undoubted title to the lot of land *516described in the plaintiff’s writ and subsequently built a schoolhouse thereon. The defendants disclaim any title to this lot and the building except the second story, which was finished as a hall andante-rooms, with certain privileges or appurtenances connected with it. To this second story consisting of the hall and anterooms they, in substance allege a title and the remainder of the ■brief statement sets out certain easements which are in fact privileges or appurtenances connected with and belonging to the hall.
At a meeting holden in January, 1852, the district voted to build a school-house and purchase a lot for the same. At an adjournment of the same meeting, with the subject matter of building a school-house still under consideration, it was " voted 'that the building committee be authorized to permit any person, ■or persons, desiring to do so, to put into said school-house a1 second story to be used by them as a public hall, provided that ■such person or persons shall pay the extra expense of the same, the expense to be ascertained by said committee in contracting for the erection and completion of said house.”
At a subsequent meeting- in February, 1852, under an article fin the warrant as follows, viz. ; "To see if the district will vote '«to authorize some person, or persons, to execute a sufficient lease of the upper story of the contemplated school-house, to «the proprietors of the same,” it was "voted that James S. Wiley ’be a committee in behalf of the district to execute a good and sufficient lease to Thomas S. Pullen and others to add a second story to the school-house about to be erected in this district, with a night to finish said second story into a hall and to hold the same >as proprietors thereof so long as said school-house shall stand, and that said committee be instructed to insert in said lease such provisions as he shall deem equitable in regard to keeping said building in repair, its occupancy,” &c.
In pursuance of this vote and after the school-house with the hall was finished, Mr. Wiley in behalf of the district entered into a written contract with Thomas S, Pullen, Samuel Palmei and A. B. Chase, dated December 20, 1852. By this instrumenl it appears that Pullen, Palmer and Chase, under the permissior *517given in the vote of the district had built the hall at their own expense for their own use. In it they are recognized as the owners, they, their associates, executors, administrators and assigns, are given permission to use it when it was built so long as the house shall stand, and when that is taken down provision is made for the division of the material in proportion to the value of the parts of the same " owned and occupied by each party.” It further gives the rights of ingress and egress as appurtenances to the hall and provides for the uses to which it may be put.
Much stress is laid upon this instrument by the plaintiff as confirmatory, if not the foundation, of his title, claiming that it is a lease and that as it is not for a certain number of years, no definite period for its termination being fixed, it cannot be a lease for years, and as there are no words of inheritance it can only be a lease for the life of the three persons for whose benefit it was made, and as they are all dead the lease itself has ceased to be. It is true that it was called a lease, and that the words, " demise, lease and let,” are used. But it is equally true that other words are used and that whatever it may be called, it is to be construed like other written instruments as a whole, taking into consideration all its parts, as well as the circumstances under which it rvas made and the purposes to be accomplised. Jamaica Pond Aq. Co. v. Chandler, 9 Allen, 159-167. A very important fact in this connection is, that the title to this hall was never in the district. It accrued to Pullen, Palmer and Chase before the' execution of the instrument called a lease, by virtue of their having built it under a license from the district. This fact is. recognized in the instrument itself,, and it cannot therefore be a violation of its terms to set up a title in accordance with what is. so distinctly recognized in it. We can hardly presume that the parties intended to make any change of ownership by a lease of' a piece of property to the owners of it, but in a case like this, when that property was to bo so connected with other property-that its use to some extent would involve the use of the latter,, it is but natural and proper that a contract should be made between the different owners regulating that use. In this case *518it is evident that the use of the hall might be of some benefit to -the district and to the school. It could be of no injury if used ■for proper purposes and at proper times. It is also evident that ■parties would not be willing to put their money into the hall without the assurance of the necessary easements to enable them to enjoy its use and for such a time as would make it profitable. Hence the use of the words "demise, lease and let” are fully .justified by the easements conveyed and all the other provisions may have their full force consistently with the construction put upon the instrument by the parties, that the title to the hall was in the lessees and the purpose of the paper was to regulate the use and give the easements. A construction very largely for the benefit of the district.
In this view the fact that there are no words of inheritance in the contract is of no importance, for it contains no grant of the hall whether it is real or personal property, and the grant of the •easements is only incidental to the hall and would probably have ..gone with it without the lease, with the exception perhaps of the length of time it was to bo occupied and that could only be terminated if at all by notice, which has never been given.
In accordance with this construction of the lease, have been the acts of the parties since, showing that they so understood it. For about thirty years the district occupied its part of the premises recognizing the right of the other party and at the end ■of that time in its sale to the plaintiff still recognized it. The vote of the district under which the conveyance was made was -as follows: "Chose C. H. B. Woodbury, agent to sell the -school-house and lot under Odd Fellows’ hall and convey the -same.” Thus authorizing the sale only of the premises less the Fall, the easements, as privileges and appurtenances, going with 'the hall. On the other hand the builders of the hall with their •successors and assigns have remained in unmolested possession of it for the same .length of time.
This possession is not only confirmatory of the construction ■now given the contract, but is confirmatory of, and would be ¡sufficient in itself, to establish a title in the defendants. This is not a possession of the hall by virtue of a license from and *519under the district, but under a claim of title, which claim is recognized by the district, The possession is not hostile for the district sets up no claim in opposition to it; both parties, in fact, claim and concede the title to be in the possessor, which is equally efficient in establishing it, as when there are opposite and conflicting claims.
The sale has another and an important bearing upon the result in this case. As already seen the agent by the vote of the district was authorized to sell only the " lot and school-house under Odd Fellows’ hall.” The school-house and hall were begun and recognized all the way through, including this vote, as two separate and distinct pieces of property, though physically joined together. The meaning of the vote cannot therefore be misunderstood. It did not authorize a- conveyance of the hall. The deed could go no farther than the authority and though a release of all the interest which the district had in the premises, it would convey no title to the hall; more especially as the district never had or claimed any such title.
It is however, contended that the hall was forfeited by a breach of the conditions under which it was occupied. But these were conditions, or manner of occupation only and not of grant, and to whom would the hall go if forfeited? Not to the district because if was not conveyed by the district. Besides it could not be forfeited without an entry ; and none has been made and since the conveyance none can be made. Hooper v. Cummings, 45 Maine, 366.
The plaintiff in further maintenance of his title introduces a deed from Emma P. Dennett, one of the heirs of Thomas S. Pullen, dated December 20, 1882, duly recorded. But the defendants have a prior deed from the same person though unrecorded. The later deed is a mere naked release and as the grantor had already parted with all her interest, it had no effect whatever even as against an unrecorded deed, oven if the hall had been real estate. Nash v. Bean, 74 Maine, 340; Adams v. Cuddy, 13 Pick. 463; Jamaica Pond Cor. v. Chandler, 9 Allen, 169.
It therefore clearly appears that the plaintiff has no title to *520that portion of the premises described in the defendant’s brief statement. The case shows quite as clearly that at the date of the plaintiff’s writ, or before, or afterwards, the defendants were not in possession of, and made no claim to any part of that to which a disclaimer has been filed. The only evidence to prove the fact of a claim of title is the record copy of the deed from Jonathan A. Smith to these defendants dated December 20, 1882, which describes a portion of these premises. Smith long-before this time had parted with all his interest in the lot, which through direct or mesne conveyances, came to the district. There is no proof that this deed was ever delivered, or that possession was taken or claim made under it, but the contrary.
Some objections are made to the title of the defendants under Pullen, Palmer and Chase. But we have no occasion to examine them for they have at least a color of title which is sufficient until the plaintiff shows a better one which he has failed to do.
Judgment for defendants.
Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.