delivered the opinion of the Court:

Our statute does not authorize a party to assign error on the decision of the court granting a new trial, and that is a sufficient answer to the first point made by plaintiff.

The amended count shows plaintiff entered into possession of the entire tract of land he had bought of defendant, and, until the contrary is made to appear, it must be presumed he continued in such possession. At least it is not averred he was ever evicted, or that he ever surrendered that possession to defendant, from whom he had obtained it. A party who seeks to rescind a contract must restore, or offer to restore, the property obtained, before he can recover back the purchase price paid. Gehr v. Hagerman, 26 Ill. 438. Without reference to other objections that might be taken to the special amended count, this one is fatal, and justified the decision of the court in sustaining the demurrer.

The law undoubtedly is, the action of assumpsit for money had and received is an equitable action, and lies where defendant has in his hands money belonging to plaintiff which, in conscience, he ought not to retain; still, that view of the law does not aid plaintiff’s case. According to his own testimony, one note given for the consideration to be paid for this land is outstanding, and has never been paid. It is true, it has been assigned, yet it does not appear but defendant may have to take it up from his assignee. It is not shown defendant has any money in his hands that equitably belongs to plaintiff.

But, taking a broader view of the case, the testimony does not show any right of action in favor of plaintiff. His own testimony is, defendant made him a deed for the entire seven and one-half acres; only reserving a vendor’s lien. Afterwards, when he paid one note, he made him a second deed, at request of plaintiff, to release the vendor’s lien. This last deed, it is said, does not embrace all the land, but that, it seems to us, can make no difference. It is not alleged or proven the first deed was ever in any manner released; but if it had been, plaintiff claims to have been in possession, and no subsequent conveyance to another party, by defendant, could affect his rights. Evidence in the record shows the land platted for a street has not been used, nor has any street been opened upon it. There is not a particle of testimony the city ever accepted the dedication of this land for the use of a public street, nor is there any evidence that even tends to show it ever will. Plaintiff’s possession has not been disturbed, and may never be. Construing the evidence excluded most strongly against defendant, as we must do, it makes no case in favor of plaintiff for which he ought to recover in this action.

The judgment will be affirmed.

Judgment affirmed.