Elmore

The court below rendered an ordinary money judgment in favor of the plaintiff and against the defendant for the sum of six thousand five hundred dollars, together with costs; and the defendant appealed from the judgment and from an order made denying his motion for a new trial.

We think that the judgment must be reversed and a *518 new trial ordered, because neither the complaint nor the findings sustain the judgment entered; the cause of action, if any, established by the findings is wholly different from the one averred in the complaint; the allegata and the probata do not agree.

It is averred in the complaint that the deceased,. Sarah F. Elmore, was the wife of the appellant; that during her lifetime and during the coverture she received certain property from the estates of her deceased parents, which was mostly in the form of money; that she furnished this money to the appellant as her agent and trustee to purchase lands and some personal property for her; that, in pursuance of such trust, he did purchase large tracts of land and improved the same with her said money, which said lands so purchased are specifically described in the complaint; that he took the conveyances of…