1. Where the real owners were present at a sale of slaves, sold as the property of another, but were ignorant of their title, they are not chargeable with fraud in not forbidding the sale, and will not be enjoined from asserting at law their title of which they were subsequently informed.
2. Fraud cannot exist, as a matter of fact, where the intent to deceive does not exist, for it is emphatically the action of the mind, which gives it existence.
NASH, J.
At the December Term, 1848, the case of West v. Tilghman, 31 N.C. 163, was decided. That was an action at law brought to recover the boy Reuben, and under the same state of facts as exist here. The Court then decided that the legal title to the negro was not lost by the plaintiff's being present at the sale and not forbidding it. Upon the granting of the venire de novo in that case the then defendant Tilghman filed this bill for an injunction to restrain the plaintiffs at law from proceeding in their action. The injunction was granted; and upon the coming in of the answers on argument it was dissolved and an appeal taken to this Court. The facts upon which the plaintiff rests his claim to the relief he asks are that the defendants were present both at the hiring of the slaves Reuben and Sylva and also at the sale of them, and they fraudulently concealed their title. This fraudulent concealment is the gravamen of the plaintiff's complaint. The title to the slaves was in the present defendants at the time of the sale by virtue of the right of their wives, but they both positively denied that they had any knowledge of the fact at the time, and the plaintiff has entirely failed to sustain the allegation of fraud. The silence of the defendants at the time of the sale is fully explained by their ignorance of the fact of title. Fraud cannot exist as a matter of fact where the intent to deceive does not exist, for it is emphatically the action of the mind which gives it existence. But the absence of all fraudulent intention is incontrovertibly shown by the fact that Kilpatrick, one of the (185) defendants, purchased Sylva, one of the slaves.
The case is not before us on the hearing, but on the interlocutory order dissolving the injunction. We see no error in the decision of his Honor below.
PER CURIAM. Affirmed.
Cited: Saunderson v. Ballance, 55 N.C. 327; Foy v. Haughton, 85 N.C. 172; Hull v. Carter, 86 N.C. 526; Ramsey v. Wallace, 100 N.C. 82; Tarault v. Seip, 158 N.C. 370.
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