In an action under the Code for the wrongful conversion of personal property, the plaintiff cannot recover, where it is stated in the defendant’s answer, and proved on the trial, that the defendant took and sold the property-rightfully, by virtue of a mortgage, and obtained on the sale a surplus, which he held as trustee for the plaintiff, and such surplus had been demanded before the action was commenced.

A claim against the trustee cannot be united in the same action with one for the wrongful conversion of property.