In the agreed case is the following: “And it appearing to the Court that the plaintiff and defendant have and do waive a jury trial, and agree that the Court shall find the facts and conclusions of law, after hearing the pleadings and the evidence offered by the plaintiff and the defendant.”
The court below found the facts and there was competent evidence to sustain the findings of fact. We think, under the findings of fact, the conclusions of law found by the court below were correct.
In Lyons v. Knights of Pythias, 172 N. C., 408 (410), it is said: “On proof of the death of the member, presentation of the policy by the beneficiary and denial of any liability by the company, a prima facie right of recovery is established, and defendant, claiming to be relieved by reason of nonpayment of dues or other like default, has the burden of proof in reference to such defenses. Harris v. Junior Order, etc., 168 N. C., 357; Wilkie v. National Council, 147 N. C., 637; Doggett v. Golden Cross, 126 N. C., pp. 477-480.” Blackman v. W. O. W., 184 N. C., 75; Green v. Casualty Co., 203 N. C., 767 (773); Creech v. Woodmen of the World, 211 N. C., 658 (660).
The defendant did not allege fraud, but set up mutual mistake. The court below, whom it was agreed could find the facts, found the facts contrary to defendant’s contentions. It was bound by the findings of fact by the court below to the same extent as if a jury had so found.
For the reasons given, the judgment of the court below is
Affirmed.