¶1*185The opinion of the court was delivered by
¶2The complaint is based upon s. 3813, E. L., and’ charges that the respondent did knowingly and unlawfully permit a certain building owned by him, situate in the village of Eutland and occupied as a drug store, to be used as a place of public resort, where intoxicating liquor was kept for unlawful sale, etc., in violation of law.
¶3The exceptions show that Oliver J. Cain, on the 25th day of October, 1883, by his deed of warranty, duly executed and recorded, conveyed the premises in question, which consisted of a two-story wooden building, tc the respondent; that the deed,, though absolute on its face, was in fact a mortgage, as security for a sum of money loaned by the respondent to Cain, and that it was expressly agreed between the parties that when the money was repaid the respondent should re-convey the premises to Cain, who all the while remained in possession thereof.
¶4The relation of the respondent to the property was that of mortgagee without possession, and, so far as the case shows,, without a right of possession. Cain had title thereto by virtue-of his deed from his grantor, Ellis, and was in lawful possession and in full control thereof as a mortgagor, and not as the respondent’s lessee or by his permission. This being the case presented by the agreed statement of facts, the respondent did not, as owner, let the building or permit it to be used for the-purposes prohibited by s. 3813, E. L.
¶5The pro forma judgment is reversed, exceptions sustainedy and the respondent adjudged not guilty.