This action was commenced by Albert T. Ryan, trustee in bankruptcy of the estate of Peter Van Blaricom, against Walter A. Rogers and also Peter A. Steers, as sheriff of Bingham county. By this action plaintiff sought to recover from the appellants $3,000, the alleged value of the stock of merchandise which the respondent, as trustee aforesaid, claimed belonged to said Van Blaricom, and which it is alleged the appellants wrongfully converted to their own use.
The answer contains a specific denial' of all the allegations of the amended complaint; and further answering they allege that the appellant Steers was, at the dates mentioned in the complaint, sheriff of Bingham county, and that on the twenty-first day of July, 1903, the said Van Blaricom was indebted to the appellant Rogers in the sum of $1,500, and to secure the payment of the same he executed and delivered to said Rogers a certain chattel mortgage upon the identical stock of goods, wares and merchandise referred to in the amended complaint that sets out particularly the terms of said chattel mortgage; that after paying the interest upon said indebtedness for the first quarter, said Van Blaricom failed and neglected to pay any of or further interest thereon; and that pursuant to the terms of said mortgage, the said Rogers declared the whole of said indebtedness due and payable, and thereupon, on the eighth day of July, 1904, proper proceedings were brought as provided by law for the foreclosure of said mortgage; and that thereupon the appellant Steers, as sheriff, took possession of the property described in said mortgage and proceeded according to law to make a sale thereof to satisfy the indebtedness secured by said mortgage; that thereafter, and before the sale of said property took place, *406the said sheriff was enjoined from selling said property, and thereafter said injunction was dissolved and the sale of said property was made by the sheriff of said county for the sum of $1,835; that at all times mentioned in said amended complaint said mortgage was a valid and existing lien upon the property described therein, and that in seizing and selling said property the appellants frilly complied with the law in such cases made and approved. The issues being thus made, the following stipulation was entered into before the trial of the case began: “It is hereby stipulated that a special question shall be submitted to the jury in answer to which they shall find simply the value of the property seized and sold by the defendants, and there shall be submitted to the court, upon the evidence, the question whether or not the chattel mortgage in controversy, under the circumstances shown by the evidence, was void as against the plaintiff at the time of the plaintiff’s appointment as trustee, the court to take into consideration the fact of actual possession by the defendants of said property at said time, and if the court find that said mortgage was at said time void as against the plaintiff, and further find the defendants had no valid lien as against the trustee by reason of such possession, judgment shall be entered in favor of the plaintiff and against defendants for the full amount of the value of said property as found by the jury; otherwise, judgment to be for said defendants. ’ ’. Thereafter a jury was impaneled, and under said stipulation one question was submitted to them, and that was “the value of the property seized and sold by the defendants.” The jury found the value of said property to be $2,400. The court thereupon proceeded to try the other issues made by the pleadings, and made its findings of fact and conclusions of law and entered judgment thereon, wherein and whereby it was adjudged that the respondent, trustee, have apd recover of and from the appellants the sum of $2,100, with interest thereon and costs of suit. This appeal is from that judgment. A number of errors are assigned, the first of which is that the court erred in not ren*407dering judgment in accordance with said written stipulation made by counsel for the respective parties. It appears from their stipulation that three questions were submitted for determination: one to the jury — two to the court. The jury was required to and did find the value of the property so seized and sold by the appellants to be of the value of $2,400. The first question submitted to the court by said stipulation was whether or not the chattel mortgage in controversy, under the facts and circumstances shown by the evidence, was void as against the plaintiff at the time of plaintiff’s appointment as trustee, and in determining that question the court, under the terms of said stipulation, was to take into consideration the fact of the actual possession by the defendants of said property at said time; and, second, if the court should find that said mortgage was at said time (date of appointment of trustee) void as against the respondent trustee, and further find that the defendants had no valid lien as against the trustee by reason of such possession, judgment should be entered in favor of the respondent and against the appellants for the full amount of the value of said property as found by the jury; otherwise judgment was to be rendered and entered for the appellants. The stipulation requires that the judgment be absolutely for the defendants, unless the court found, as a matter of law, that the chattel mortgage was void as against said trustee; and also that the appellants had no lien upon said property by virtue of their possession thereof. In other words, if the court found that said mortgage was void as against the trustee, judgment should go in his favor for the full value of said property. But if the .court found it valid as against the trustee, judgment was to go against him for the full value of the property found by the jury.
We conclude, under said stipulation and the findings of the court on the question submitted to it, that judgment should have been entered for the appellants. The court found that the mortgage was a valid mortgage as to a part of the property that had been seized and sold by the sheriff *408under said chattel mortgage foreclosure proceedings. By the terms of said stipulation the court was not authorized to determine the value of the merchandise actually included in said mortgage, but was only authorized to determine the question of the validity of said mortgage. No doubt respective counsel considered that it would be very difficult to segregate the articles of merchandise that were in the store building occupied by the mortgagor at the time he executed said mortgage, and the articles that he had purchased thereafter and intermingled with those that he had mortgaged. While the judgment of the trial court may be equitable, it is not in accordance with said stipulation, and the terms of the stipulation must control. The judgment must be reversed and the cause remanded, with instructions to enter judgment for the defendants. Costs of this appeal are awarded to the appellants.
(July 18, 1906.) Stoekslager, C. J., and Ailshie, J., concur.