Bryan

Action to quiet title to certain land in the town of Berkeley. Both parties claim through one John Mathews, in whom the title stood of record until August 13, 1880, when he conveyed to the defendant, who was his son in law. The plaintiff’s position is that, prior to the conveyance to the defendant, John Mathews had conveyed to his brother, Peter Mathews, through whom she claims. The trial court gave judgment for the plaintiff, and the defendant appeals. Several points are made by the learned counsel for the appellant, but we deem it sufficient to notice the following:

1. It is contended that the complaint does not support the judgment. The complaint alleges that the plaintiff was the owner and in possession of the property, while the findings are that the plaintiff was the owner, but that the defendant was in possession; and the judgment is that the plaintiff’s title be quieted, and that the defendant be removed from possession. The findings and judgment, therefore, so far as the *87 possession is concerned, are in direct contradiction of the complaint. It is obvious that the plaintiff cannot have a judgment in direct contradiction of her complaint: Von Drachenfels v. Doolittle,…