#### William Buhs, Plaintiff in Error, v. William B. Austin, Defendant in Error.

Gen. No. 18,273.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.

Affirmed.

Opinion filed October 15, 1913.

Statement of the Case.

Action by William Buhs against William B. Austin to recover certain rents collected by the latter. From a judgment for defendant, plaintiff brings error.

*456Abstract of the Decision.

1. Mortgages, § 738 * —when owner of equity of redemption is entitled to rent. While an owner of an equity of redemption is entitled to the rents and profits accruing from the premises during the redemption period, such rents cannot be recovered by him from an assignee, when applied to the payment of expenses incurred in the management of the premises, as authorized by the instrument assigning the rent.

2. Assumpsit, action of, § 1*—what is nature of action of assumpsit. The action of assumpsit for money had and received is equitable in its nature and lies to recover money which in equity and good conscience the defendant ought to refund. Such a recovery would not be equitable where a defendant assignee of rents has expended the money collected for necessary repairs to permit a plaintiff to realize a profit upon his property.

Rathje & Wesemann, for plaintiff in error.

John A. Swanson and Aaron Heims, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Justice Baume

delivered the opinion of the court.