¶1On Petition for Eehearing.
¶2Counsel for respondent argues that the finding of the trial court must prevail in this case. He states that “in reviewing findings of fact made by a trial court it must be presumed on appeal that the decision of such a court is sustained by the weight of evidence, and unless it appears that the testimony clearly preponderates against such decision, the presumption that the findings are right must prevail.” He is clearly in error, however, in so far as the present action is concerned. This is an equity case, and has come before this court for a trial de novo under the provisions of the so-called Newman act (§ 7229, Eev. Codes, 1905). The rule which prevails in cases which are triable by a jury does not prevail in equity cases, which are tried and appealed under the provisions of § 7229. A trial de novo, in short, is a trial de novo.
¶3Counsel also confuses a lack of consideration with a failure of consideration. He alleges in his complaint that “the plaintiff further states that the said mortgage was and is entirely without consideration,” and seeks to sustain this proposition by proof that the promise to release a mortgage upon the son’s unpatented government homestead was *598the consideration foi’ the subsequent mortgage, and that this promise was not complied with prior to repudiation of the mortgage by the plaintiff. This, to our mind, would be a failure, and not a lack of consideration. This was the main reason for the statement made by the court that a mortgage made upon a government homestead before final proof was not a nullity; because upon the theory of a nullity, and this theory alone, could there be any contention that there was no consideration for the execution of the mortgage by the mother. Counsel says that he never put forth such a contention, and “that it is an imputation of ignorance for this court to say that he so contended.” He certainly, however, stated in his brief that “a mortgage upon government land by one in possession of same is void if the homesteader never perfects his title to the land under the homestead laws. The mortgage does not attach until the patent issues,” and upon this statement he based his claim that “the agreement ,to release or the releasing of the preliminary mortgage on government land” furnished no consideration for the mother’s mortgage. So, too, practically all, if not all, of the cases which he -cites, are cases in which the contract or mortgage for which the second obligation was sought to be substituted or to operate as a security was void or in which the original agreement was itself void.
¶4Counsel also claims that there is no proof in the record that the release of the Cassius Englert mortgage was delivered before the defendant, Dale, had notice that Mrs. Englert intended to repudiate the subsequent mortgage upon her property. He, however, has entirely failed to realize on whom the burden of proof rests in this case. It is for the plaintiff to show that the release was not delivered, and not for the defendant to show that it was. There is certainly nothing in the evidence to show that it was not delivered prior to the notice of the alleged repudiation of the subsequent mortgage, while the date of the release is prior to that time. It is to be remembered that this is an action to set aside a written instrument, which upon its face is valid and has all the outward indications of an instrument that was solemnly executed. It must be plain that the burden of proof to show either an absence or a failure of consideration is upon the plaintiff. This, indeed, is not only the rule of the common law, but the rule which the statute prescribes. -See §§ 5325 and 5326, Rev. Codes 1905.
¶5The petition for a rehearing is denied.