Trustees for the Support of Public Schools v. Taylor

This case differs from another similarly entitled, and in which an opinion at length has been filed, in that the only mortgage upon the premises is that held by the complainants, and that said mortgage was executed on May 31st, 1875, and during the period within which the assessment ■for the taxes of the year 1875, in and for the city of Trenton was authorized to be made, under the provisions of the charter of that city. The answer of the city sets up, that the assessment for that year was made between the first Mon*626day in May and the last Monday in June, 1876, but it is not claimed in the answer, nor is there any proof, that the assessment was made before the execution of the mortgage of the complainants. The averment of the answer as to the date of the assessment is perfectly consistent with the fact that it was made after the execution of the mortgage, and, by a well-settled rule of equity pleading, the averment is to be construed most strongly against the pleader. The answer must, therefore, be taken to admit that the mortgage was executed to the complainants before the assessment was levied. Story’s Eq. Pl. § 452a.

This case is therefore essentially alike to that in which the opinion has been filed, and for the reasons therein stated the chancellor is respectfully advised that the exceptions to the master’s report be overruled.