In this case the trial court decreed the cancellation of a deed to a lot in Wagner, S. D., in which Albert A. Boynton, son of plaintiff, was grantor and the defendant was grantee, which deed defendant claimed, and the court found, to constitute a mortgage. From- the judgment and order denying a new trial, defendant appeal®.
Stripped of unnecessary faots the question is whether plaintiff or defendant shall suffer loss by .reason of the negligence of plaintiff to record a_ deed from her, son to herself to property which constituted the homestead of plaintiff and of which she was in actual, open, and notorious possession, and had been for several years. The consideration for the premises was' paid by plaintiff, or by' plaintiff and her husband, and the title was placed ini the son for the purpose of holding it in trust for plaintiff. The son never exercised ownership' over the property; did ■not furnish any funds for the improvements thereon; did not pay taxes or otherwise maintain the property, nor have possession thereof.
Because - Of the actual .possession of the premises by plaintiff, it must be held that the defendant shall suffer the loss. He was charged with the notice of plaintiff’s occupancy of the premises, and therefore was charged with notice of the facts which we most presume 'would have become apparent úpom inquiry, to-wit, that although the title to the premises stood of record in the sion the plaintiff was the real owner. Sutton v. Whetstone, 21 S. D. 341, 112 N. W. 850.
The judgment and order appealed from are affirmed.