This is an action brought by plaintiffs, residing in the town of Engelhard, against defendants to restrain them from levying a certain tax which plaintiffs contend is illegal and void. That they owed no tax and the levy “would cast a cloud upon their title.” The court below found the facts and rendered judgment in favor of defendants, dissolving the restraining order. The record imports verity. None of the exceptions and assignments of error set forth in the judgment of the court below, made by plaintiffs, can be sustained on the facts found. We therefore think the judgment is correct. It will be noted that the cause was heard “by consent of the parties.”
N. C. Code, 1939 (Michie), sec. 556, is as follows: “An issue of law must be tried by the judge or court, unless it is referred. An issue of fact must be tried by a jury, unless a trial by jury is waived on a reference ordered. Every other issue is triable by the court, or judge, who, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it.”
Sec. 569: “Upon trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a statement of the fact found, and the conclusions of law separately. Upon trial of an issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such decision must be filed with the clerk during the court at which the trial takes place, and judgment upon it shall be entered accordingly.”
The learned and efficient judge in the court below found the facts and his conclusions of law, in accordance with the statutes, supra, and dissolved the restraining order. Ins. Co. v. Carolina Beach, 216 N. C., 778 (788-9).
The court below found: “All the citizens of the Town of Engelhard, particularly the plaintiffs in this action, had full knowledge that the Mayor and Board of Commissioners were reorganizing the Town Government ; they knew that said officers were holding meetings in response to the petition of the citizens of the town; knew that they had made application to WPA for a grant of money for the purpose of assisting in the construction of said municipal building and also knew that a part of the cost thereof was to be paid from the proceeds of a-tax levy made in August, 1939; they knew that said levy had been made,” etc.
In Smith v. Carolina Beach, 206 N. C., 834 (836-7), Brogden, J., speaking for the Court, said: “What is a de facto municipal officer ? *177A comprehensive definition of the term is found in Waite v. Santa Cruz, 184 U. S., 302, 46 L. Ed., 552, and is in the following language: ‘A de facto officer may be defined as one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. When a person is found thus openly in the occupation of a public office, and discharging its duties, third persons having occasion to deal with him in his capacity as such officer are not required to investigate his title, but may safely act upon the assumption that he is a rightful officer.’ The same general idea has been expressed by this Court, speaking through S. v. Lewis, 107 N. C., 967, 12 S. E., 457, as follows: ‘An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised. . . . under color of an election or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such.’ See, also, Van Amringe v. Taylor, 108 N. C., 196, 12 S. E., 1005; Hughes v. Long, 119 N. C., 52, 25 S. E., 743; Rodwell v. Rowland, 137 N. C., 617, 50 S. E., 319; Whitehead v. Pittman, 165 N. C., 89, 80 S. E., 976; Markham v. Simpson, 175 N. C., 135, 95 S. E., 106.”
In 22 R. C. L., sec. 306, p. 588, it is said: “Lord Ellenborough has defined an officer de facto as one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law, and this definition has been quoted with approval in many cases. Another and more comprehensive definition is as follows: A person is a de facto officer where the duties of the office are exercised: ‘First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second, under color of a known and valid appointment or election, hut where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like. Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth, under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.’ And this has been widely accepted.”
The court below further found: “During all the time of the reorganization of the town government, the levying of the tax, advertising and *178selling tbe town’s note and tbe actual construction of tbe building, tbey bad full knowledge of eacb and every step taken and no protest was ever made by any one of them- against any act taken by tbe Mayor and Board of Commissioners in respect to tbe levying of tbe tax, tbe borrowing of tbe money or tbe construction of tbe building.”
It will be noted in tbe finding of facts above set forth “Tbey bad full knowledge of eacb and every step taken.” We tbink plaintiffs are estopped by tbeir conduct to make tbe contention bere made.
In R. R. v. Lassiter & Co., 207 N. C., 408 (415), speaking to tbe subject: “Tbe law is as follows, as stated in R. R. v. Kitchin, 91 N. C., 39 (44) : ‘Where one of two persons must suffer loss by tbe fraud or misconduct of a third person, be who first reposes tbe confidence, or by bis negligent conduct made it possible for tbe loss to occur, must bear the loss.’ Barnes v. Lewis, 73 N. C., 138; Vass v. Riddick, 89 N. C., 6; Bank v. Liles, 197 N. C., 413 (418) ; Bank v. Clark, 198 N. C., 169 (173); Lightner v. Knights of King Solomon, 199 N. C., 525 (528).” Warehouse Co. v. Bank, 216 N. C., 246 (254).
It appears from tbe findings of fact, argument and brief of defendants that “Engelhard is a thriving community and the building which has been constructed was badly needed. It bouses tbe fire equipment for tbe town, furnishes necessary offices, and an auditorium for community activities. Its need was felt by all tbe citizens, including tbe plaintiffs. Tbey were willing that tbe building be built and that tbe Government and tbe County of Hyde furnish its money for such purpose. Yet tbey voice objection only when it came to paying tbe taxes which bad been levied against tbem. Tbey are willing to accept tbe benefits which tbey have obtained from this building and ought to now be made to pay their proper part of tbe expenses.”
For tbe reasons given, tbe judgment of tbe court below is
Affirmed.