*323Decided July 30, 1912.
On Rehearing.
[125 Pac. 277.]
Opinion by
Mr. Chief Justice Eakin.The defendant, as sheriff, held an execution against Oscar Mahler, and, at the time of the levy on the goods, found them in Mahler’s possession in a building situated on the Koshmeder place, which he occupied under a lease. The property attached was onion sets raised and owned by him at the time of the levy, unless he had parted with the title by the pretended sale relied upon here. The sheriff was justified, therefore, in levying upon them as the property of Mahler. Plaintiff had previously taken a chattel mortgage on the growing crop for $1,200, as security for $300, previously advanced, and for further advances thereafter to be made to enable him to cultivate and harvest his crop.
1. It is contended'by plaintiff that about the middle of August she made an arrangement with Mahler, whereby she purchased the onion sets from him for $300; and that she was to pay an additional $100 to enable him to complete the harvesting of the crop, which had been commenced then, although at that time he was not in default, and the advances made by her did not exceed $936.
There was no delivery or change of control or possession of the crop. Section 799, subd. 40, L. O. L., provides :
“Every sale of personal property, capable of immediate delivery to the purchaser, and every assignment of such property, by way of mortgage or security, or upon any condition whatever, unless the same is accompanied by an immediate delivery, and be followed by an actual and continued change of possession, creates a presumption of fraud as against the creditors of the seller or assignor, during his possession, or as against subsequent *324purchasers in good faith and for a valuable consideration, disputable only by making it appear on the part of the person claiming under such sale or assignment that the same was made in good faith, for a sufficient consideration, and without intent to defraud such creditors or purchasers. * * ”
In discussing this subdivision, Mr. Justice Bean, in Pierce v. Kelly, 25 Or. 95, 99 (34 Pac. 963, 965), says:
“The change of possession necessary to overcome and rebut this presumption (of fraud) must be actual, and not merely constructive or legal; it must be effected in a way calculated to give notice to the public that there has been a change in the ownership or control of the property; and a mere constructive possession, or one taken by words and inspection, will not satisfy the statute.”
No such change took place; therefore the sheriff’s levy and possession was rightful in the first instance, and the burden was upon the plaintiff to make it appear that the sale was in good faith, for a sufficient consideration, and without intent to defraud the creditors of Mahler.
2. If plaintiff had based her right upon the mortgage when the attachment was made, or when she brought this action, her interests would have been well protected; but she led the creditor to consider the onions as belonging to Mahler, and, after he had acted upon the conditions as he had found them, she asserted absolute ownership of the crop and sought to defeat the creditor, when, in fact, according to her admission, there was due to Mahler $300, as the value of his interest in the crop ; and, lest the creditor should learn that fact and secure that sum, she paid it to him after the attachment and before it was due, thus showing a purpose to aid Mahler to avoid payment of the debt. An attaching creditor is deemed a purchaser in good faith, and for a valuable consideration, of the property attached; and the pre*325sumption of law is that the pretended sale of the goods by Mahler to plaintiff was fraudulent, and the burden is upon plaintiff to prove that it was made in good faith.
There are several circumstances, aside from the pre-' sumption above mentioned, which tend to show that the sale was intended to aid Mahler to defraud the creditor. These are mentioned in the opinion and fully justify the finding of the circuit court. It may be that plaintiff had, in good faith, a valuable interest in the goods for advances made; but that is not the ground upon which she seeks to recover. She stakes her claim upon the pretended sale, and not upon the mortgage; and she cannot now take a new or different ground of recovery, after it is too late for the creditor to take advantage of the true conditions.
The contention that Mrs. Dose was at least entitled to two-thirds of the crop raised on the Kunzie place, as her share thereof, is not an issue suggested here. If she had sought to claim a portion of the onions by reason of having raised them herself, or as rental, she should have made a specific demand of the sheriff therefor, setting forth the nature and extent of her interest, in the absence of, which she has permitted that interest to stand or fall with the validity of the sale. Mahler raised both crops, and was in possession of them, and both are included in the mortgage. There is nothing in the record upon which a court can recognize plaintiff’s rights in the crop on the Kunzie place, either as the owner of the whole crop, or of the rental therefor from Mahler, without a specific demand upon the sheriff, disclosing her interest. Such a claim was not at any time contemplated in this proceeding, and the creditor at no time had an opportunity to meet such an issue or take advantage of it; and the same is true of plaintiff’s rights under the mortgage.
We adhere to our former opinion. Affirmed.
Mr. Justice Burnett and Mr. Justice Bean dissent.