'Woods, Judge :
In the view wre have taken of the proceedings in this cause it is unnecessary to notice all the errors assigned, or to decide all the questions raised thereby.
Bat upon the hypothesis that the court had jurisdiction to hear'and determine the cause, if is difficult to conceive, how one of so much importance, could have been prosecuted by the plaintiffs to a final decree without discovering the numerous errors apparent on the face of these proceedings.
The bill is prepared to accomplish one or two purposes; either to obtain a rescission of the contract dated November 25, 1854, and as consequent thereto a reconveyance of said fifty thousand acres of land, or, to enforce the collection of said thirty-six thousand dollars of purchase-money, as a vendor’s lien on, and by a sale of, said five hundred thousand acres. The prayer of the bill is also in the alternative, first for such rescission and reconveyance; and secondly, if the plaintiffs be not entitled to that relief, then, that the five hundred thousand acres be sold and the proceeds thereof, so far as necessary, be applied to the satisfaction of said purchase-money. Considered in the character of a bill seeking only a rescission of said agreement and a reconveyance of [341]*341said land, it is wholly insufficient for that purpose, as it does not allege any mistake in the agreement itself, or any fraud or undue influence used by said Maitland in procuring the execution thereof, or any illegality in the contract itself, or any failure of the consideration thereof, or that the same was contrary to public policy or good morals, so that the same ought not to be enforced. Instead of this, the contrary of all of these, manifestly appears upon the face of the bill. As a bill for such a purpose it was clearly demurrable.
Regarding the bill in its alternative aspect, as one brought to enforce the specific execution of said agreement, by selling the five hundred thousand acres of land to enforce the vendors’ lien thereon for the payment of said thirty-six thousand dollars it is equally defective; for while the bill alleges that it was intended that said purchase-money should constitute a lien upon the land actually sold, and also upon all the interest then owned by Maitland or which he might thereafter acquire in said five hundred thousand acres, — yet it appears by the allegations of the bill, that said vendors had conveyed to Maitland the legal title to all of their interests in said five hundred thousand acres on July 18, 1855, by deed duly executed, acknowledged and recorded, in which no lien for any part of said purchase-money was retained, and therefore the claim is reduced to a simple demand for the payment of an alleged debt, for the recovery of Which the plaintiffs had a plain, complete and adequate remedy at law. As a bill therefore, for such alternative relief it was demur-rable, unless it could be'maintained upon other good grounds of equitable jurisdiction, which we will hereafter consider.
But waiving for the present all defects in the bill, upon what principle -did the special commissioner ignore the de-fence set up by Maitland in his answers and all the evidence contained in the depositions which was unimpeached and uncontradicted, and wholly disregard the abatements to which said defendants’ testimony showed he was entitled ? It is true the commissioner reported- only sixteen thousand dollars of principal money due, upon the strength of a paper filed in the cause which was neither mentioned nor relied on by the plaintiffs nor defendants, in the pleadings and upon which no issue was made or joined. Upon what principle of [342]*342law, did ho report, in this case, that Maitland should in addition to said sixteen thousand dollars, also be charged with fifty-four per cent, premium, and then interest on said aggregate sum from March 27, 1865, until September 9,1878, when the uncontradicted proofs in the cause showed that the contingency on which any part of the thirty-six thousand dollars should become payable, had never arisen ? To render a decree founded upon matters appearing in evidence only, without being put in issue by the pleadings is clearly erroneous; to overrule an exception for that cause to such a report, and decree the payment of a debt, and a premium on the debt, without claim thereto, or proof thereof, is such an error as would of itself bo sufficient to reverse such a decree.
But the main question, and the one lying at the foundation of these proceedings is whether the court had jurisdiction to render any decree whatever in this cause ?
We have already shown, that said bill as a bill for the rescission of said agreement, and consequent reconveyance ot said land, or for the enforcement of said alleged vendors’lien on the same, could not be sustained. Is there disclosed in this record any other equitable ground on which the same may be maintained ? This ground must not only appear to exist in this cause, but it must further appear, that the circuit court had jurisdiction of the person of the defendant Mait-land, or over the subject-matter of the suit, or over both. Without jurisdiction over his person, a personal judgment or decree against him, would be a nullity; without such jurisdiction, or a seizure of the subject-matter of the suit, such decree or judgment against the thing will be a nullity, and with such jurisdiction of the person of said defendant, there may be either a decree in personam or in rem, or both at the election of the plaintiff. The said court being one of general jurisdiction had power to take jurisdiction of this cause and of the subject-matter thereof, but although it was clothed with legal capacity to take jurisdiction of the subject-matter, yet to give it actual jurisdiction in this particular case, either over the person of Maitland or -the land, the bill must be good on general demurrer. Borer on Judicial Sales, sections 66, 67; 1 J. J. Marshall 166; 6 J. J. Marshall 197. To authorize a personal judgment or decree he must [343]*343have been served with process in the cause or he must have appeared thereto in such manner and for such purpose as is equivalent thereto, or as amounts to a waiver thereof. Process in this cause might have been executed either by attaching said land of Maitland and after said attachment was returned executed, publishing a'n order of publication as required by section 17, chapter 106 of the Code, or by personal service of process.' But we have seen that no attachment was issued in this cause, and therefore no service of process could be had by such order of publication, and no such order of publication was ever in fact made. There remained therefore only one mode of serving said process — that is to 'say by personal service. "We have already seen that there is no evidence in this record, that personal service of process upon Maitland was in fact-ever made. On the contrary it appears that at June rules 1871, it was not so made, and that the process must have been returned by the officer, that the defendant Maitland did not reside in Mercer county, and the affidavit recited in the order of publication, which was never executed, must be held as equivalent to such ref urn. An attachment might then, or at any day before the return day of said process, have been sued out and levied on said land, which was not done. Pulliam v. Aler, 15 Gratt. 54; Steele v. Harkness, 9 W. Va. 13.
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'Woods, Judge :
In the view wre have taken of the proceedings in this cause it is unnecessary to notice all the errors assigned, or to decide all the questions raised thereby.
Bat upon the hypothesis that the court had jurisdiction to hear'and determine the cause, if is difficult to conceive, how one of so much importance, could have been prosecuted by the plaintiffs to a final decree without discovering the numerous errors apparent on the face of these proceedings.
The bill is prepared to accomplish one or two purposes; either to obtain a rescission of the contract dated November 25, 1854, and as consequent thereto a reconveyance of said fifty thousand acres of land, or, to enforce the collection of said thirty-six thousand dollars of purchase-money, as a vendor’s lien on, and by a sale of, said five hundred thousand acres. The prayer of the bill is also in the alternative, first for such rescission and reconveyance; and secondly, if the plaintiffs be not entitled to that relief, then, that the five hundred thousand acres be sold and the proceeds thereof, so far as necessary, be applied to the satisfaction of said purchase-money. Considered in the character of a bill seeking only a rescission of said agreement and a reconveyance of [341]*341said land, it is wholly insufficient for that purpose, as it does not allege any mistake in the agreement itself, or any fraud or undue influence used by said Maitland in procuring the execution thereof, or any illegality in the contract itself, or any failure of the consideration thereof, or that the same was contrary to public policy or good morals, so that the same ought not to be enforced. Instead of this, the contrary of all of these, manifestly appears upon the face of the bill. As a bill for such a purpose it was clearly demurrable.
Regarding the bill in its alternative aspect, as one brought to enforce the specific execution of said agreement, by selling the five hundred thousand acres of land to enforce the vendors’ lien thereon for the payment of said thirty-six thousand dollars it is equally defective; for while the bill alleges that it was intended that said purchase-money should constitute a lien upon the land actually sold, and also upon all the interest then owned by Maitland or which he might thereafter acquire in said five hundred thousand acres, — yet it appears by the allegations of the bill, that said vendors had conveyed to Maitland the legal title to all of their interests in said five hundred thousand acres on July 18, 1855, by deed duly executed, acknowledged and recorded, in which no lien for any part of said purchase-money was retained, and therefore the claim is reduced to a simple demand for the payment of an alleged debt, for the recovery of Which the plaintiffs had a plain, complete and adequate remedy at law. As a bill therefore, for such alternative relief it was demur-rable, unless it could be'maintained upon other good grounds of equitable jurisdiction, which we will hereafter consider.
But waiving for the present all defects in the bill, upon what principle -did the special commissioner ignore the de-fence set up by Maitland in his answers and all the evidence contained in the depositions which was unimpeached and uncontradicted, and wholly disregard the abatements to which said defendants’ testimony showed he was entitled ? It is true the commissioner reported- only sixteen thousand dollars of principal money due, upon the strength of a paper filed in the cause which was neither mentioned nor relied on by the plaintiffs nor defendants, in the pleadings and upon which no issue was made or joined. Upon what principle of [342]*342law, did ho report, in this case, that Maitland should in addition to said sixteen thousand dollars, also be charged with fifty-four per cent, premium, and then interest on said aggregate sum from March 27, 1865, until September 9,1878, when the uncontradicted proofs in the cause showed that the contingency on which any part of the thirty-six thousand dollars should become payable, had never arisen ? To render a decree founded upon matters appearing in evidence only, without being put in issue by the pleadings is clearly erroneous; to overrule an exception for that cause to such a report, and decree the payment of a debt, and a premium on the debt, without claim thereto, or proof thereof, is such an error as would of itself bo sufficient to reverse such a decree.
But the main question, and the one lying at the foundation of these proceedings is whether the court had jurisdiction to render any decree whatever in this cause ?
We have already shown, that said bill as a bill for the rescission of said agreement, and consequent reconveyance ot said land, or for the enforcement of said alleged vendors’lien on the same, could not be sustained. Is there disclosed in this record any other equitable ground on which the same may be maintained ? This ground must not only appear to exist in this cause, but it must further appear, that the circuit court had jurisdiction of the person of the defendant Mait-land, or over the subject-matter of the suit, or over both. Without jurisdiction over his person, a personal judgment or decree against him, would be a nullity; without such jurisdiction, or a seizure of the subject-matter of the suit, such decree or judgment against the thing will be a nullity, and with such jurisdiction of the person of said defendant, there may be either a decree in personam or in rem, or both at the election of the plaintiff. The said court being one of general jurisdiction had power to take jurisdiction of this cause and of the subject-matter thereof, but although it was clothed with legal capacity to take jurisdiction of the subject-matter, yet to give it actual jurisdiction in this particular case, either over the person of Maitland or -the land, the bill must be good on general demurrer. Borer on Judicial Sales, sections 66, 67; 1 J. J. Marshall 166; 6 J. J. Marshall 197. To authorize a personal judgment or decree he must [343]*343have been served with process in the cause or he must have appeared thereto in such manner and for such purpose as is equivalent thereto, or as amounts to a waiver thereof. Process in this cause might have been executed either by attaching said land of Maitland and after said attachment was returned executed, publishing a'n order of publication as required by section 17, chapter 106 of the Code, or by personal service of process.' But we have seen that no attachment was issued in this cause, and therefore no service of process could be had by such order of publication, and no such order of publication was ever in fact made. There remained therefore only one mode of serving said process — that is to 'say by personal service. "We have already seen that there is no evidence in this record, that personal service of process upon Maitland was in fact-ever made. On the contrary it appears that at June rules 1871, it was not so made, and that the process must have been returned by the officer, that the defendant Maitland did not reside in Mercer county, and the affidavit recited in the order of publication, which was never executed, must be held as equivalent to such ref urn. An attachment might then, or at any day before the return day of said process, have been sued out and levied on said land, which was not done. Pulliam v. Aler, 15 Gratt. 54; Steele v. Harkness, 9 W. Va. 13.
By the third clause of section 1 of chapter 123 of the Code it is provided that an action at law or suit in equity, “if it be to recover land or subject it to a debt, Or be against a debtor who resides without, but has estate or debts due him within this State, may he brought in any county wherein such land, estate or debts, or any paid may be/’ And by the second section of said chapter, “in any county wherein the cause of action, or any part thereof arose, although none of the defendants reside therein.” By the first clause of said section 1 of said chapter, such action or suit may be “brought in any county wherein any of the defendants reside.”
By section 8 of chapter 125 of the Code it is provided, “that when a summons to answer an action or hill is against a defendant whom the officer (receiving it) knows not to reside in his county, or to reside out of the State, he shall, unless he find him in his county on or before the return day, [344]*344return him a non-resident; whereupon, if the court from which such process issued have jurisdiction of the case only on the ground of such defendant’s residence in said county, the action or suit shall abate as to him; and if he be returned a non-resident of the State, and the court have jurisdiction of the case only on the ground that the cause of action arose in the county, the action or suit shall abate as to him.”
Now in the case under consideration it does not appear from anything in the record, until after the appearance of Maitland, whether this suit was brought against him in Mercer countjg because he resided therein, or because the cause of action or some part thereof arose there. The statute is explicit, in both these cases, that if the court had jurisdiction only, because the defendant resided in Mercer county, or only because the cause of action arose there, and the process was returned showing that in the first case the defendant was a non-resident, and in the latter that he was a nonresident of the State, the suit or action shall abate, and this result in the latter case can only be avoided by showing that the court had jurisdiction of the case upon some other ground, and it is clearly the duty of the party invoking the aid of the court, to make this fact appear. If it do not so appear, it seems to us that it is the reasonable presumption of law, that such other ground of jurisdiction does not exist, and that in such case, it must be presumed that every action or suit brought against an individual would fall under one of these two provisions, and that upon the return of the officer that such defendant is a non resident the suit will abate. But although it may hqve been intended to prosecute this suit under said third clause of section 1 of chapter 123 of the Code, it does not appear that Maitland ever resided in Mercer county, or that the cause of action arose there, or that any attachment was ever issued in said cause and levied upon said lands, so as to bring them under the control of the court, whereby, with the proper subsequent proceedings the court could have properly sold the same. The order of publication which was taken in the cause but never published in any newspaper, can have no effect whatever. If it had been properly executed it could [345]*345not have had the effect to give'the court jurisdiction, for such order of publication only enables the party to mature a cause over which it has jurisdiction. We are therefore of opinion, that as no other grounds appear in this cause, to give the court jurisdiction, and as the said Maitland had never then appeared in said cause, nor been served with process therein, and as the record shows that he had in effect been returned a non-resident of the State, the said suit • abated, at least as early as the July rules, 1871. Steele v. Harkness, 9 W. Va. supra; Price, Ex'r v. Pinnell, 4 W. Va. 296.
There remains only to be considered whether the errors committed in this case are cured or waived by Mait-land in subsequently appearing to the cause and making full defence thereto, or whether he still had the right to have the cause dismissed for the want of jurisdiction over his person and the subject-matter of the suit.
This question has been considered and decided in several cases in Virginia and in this State, and in every case it has been held that where the defendant has not been properly served with process and has not entered a general appearance in the cause, but has appeared for the purpose of taking advantage of the defective service, or the want of service of process he does not waive his right to do so, if after he has been denied the benefit of this right by the judgment of the court, ho makes a full defence to the action or suit. In the case of Hickam v. Larkey, 6 Gratt 210, the defendant in an action at law who had not entered his appearance either at rules or in term, has a right upon the calling of the cause to object that it has not been legally matured for trial. In that ease the cause was matured for trial against the defendant by proclamation founded upon a pluries capias, which was blank as to its date, and was not signed by the clerk, — which was returned “not found.” The pluries capias being void, when the cause was called for trial the defendant moved the court for leave to appear and quash the pluries capias and the return thereon, and all the subsequent proceedings thereon without entering an appearance to the action, which motion was overruled, and the cause was tried and judgment given against him. IJpon a writ of error the court of appeals of Virginia for this error reversed the judgment of the circuit [346]*346court, quashed the pluries capias and return, and set aside all the proceedings subsequent to the suing out of said pretended process. The same doctrine was hold in the case of Wynn v. Wyatt’s Adm’x., 11 Leigh 585. In that ease the plaintiff sued out a summons to the defendant to answer her action, which was not properly served and the plaintiff sued out an attachment against the defendant’s goods to compel an appearance, which being returned executed an office judgment was entered at rules against the defendant, who appeared in term and moved to quash said attachment- as an irregular process. The attachment was quashed, and it was held that the defendant’s appearance in term to quash the attachment was not an appearance to the action which dispensed with further and proper process. And upon the hearing of a supersedeas to said judgment in the court of appeals of Virginia the same was affirmed, and Judge Standard, delivering the opinion of the court, in substance said, that the effect of a contrary doe-trine would be, that the defendant could not free himself from the present or past effect of erroneous process, without forfeiting his right to exemption from judgment until proper process shall be sued out and duly served upon him. In the case of Price, Ex’r, v. Pinnell, &c., 4 W. Va. 296, the plaintiff filed his bill against Pennell and Matthews, alleging that Pennell was a non-resident of the State; that he was indebted to the plaintiff; that he had estate in the county of Greenbrier, consisting of money in the hands of said Matthews, and the bill prayed that the money in the hands of Matthews might be attached and applied to the payment of his debt. Process was issued against Pennell and Matthews returnable to June rules, 1860, on which the object of the suit was endorsed. The said Matthews accepted service of process, but the same was never served on Pennell by order of publication or otherwise, and no edicts process was ever issued, but on June 26, 1861, an affidavit was filed that said Pennell was a non-resident, but no attachment was ever issued. The bill was taken for confessed as to Matthews, and Pennell filed his answer, insisting that the court had no jurisdiction to proceed in the cause, because he had never been brought before the court by order of publication or personal service of process and because at the time the suit [347]*347was commenced as was shown by his affidavit, he was a citizen of the State and resided in Wood comity. The bill was dismissed tor want of jurisdiction, and this decree upon an appeal to this Court was affirmed. Maxwell, judge, delivering the opinion of the courtsaid, “An attachment might have been sued out when said affidavit was filed, but it was not done, and the cause from that time forward should have been treated as discontinued; that the fact that the answer filed contains a full answer to the bill, cannot be held to waive that part of the answer, which insists' that the court cannot proceed until process is served.” In the case of Steele v. Harkness, supra, the same question came before this Court, and it' was again held, that where the plaintiff brought his action and sued out his summons against the defendant returnable to a certain rule day, when he filed his declaration, and the process returned “no inhabitant of my bailiwick,” and where nothing was shown in the case on which to found the jurisdiction of the court other than the residence of the defendant,- — -the suit abated upon the return of the non-residence of the defendant; and that where a defendant not having entered his appearance to the action either at rules or in term he has a right on the calling of the cause to object that it has not been legally-matured for trial; and if the court overrules his objection, he has a right to file his exceptions to such ruling, and if such ruling be erroneous, the appellate court will reverse the same, although the defendant afterwards appeared to the action and pleaded fully thereto, unless he expressly -waived his exception thereto. We are of opinion that this is the law upon tliis question, and we have no reason to depart from it. The facts presented by this record bring the case fully within these principles.
We are therefore of opinion that the plaintiffs’ suit abated as early as the July rules, 1871, and that therefore all the subsequent proceedings thereiu had by the circuit courts of Mercer and Summers' county are erroneous, and that all of the decrees rendered therein must be reversed, with costs to the said Maitland. It is therefore adjudged, ordered and decreed that all of the decrees rendered in said cause be reversed and annulled, and this Court proceeding to render [348]*348such decree as the said circuit court ought to have rendered, it is further adjudged, ordered and decreed that the plaintiffs’ said bill be, and the same is hereby dismissed without prejudice to any other action at law or suit in equity which they may be advised is necessary to obtain the relief prayed for in their said bill, and that the said Manelius Chapman out of his proper goods, and the said executors of William Ii. French, and the said administrators of Augustus A. Chapman out of the goods and chattels of their respective testator and intestate in their respective hands to be administered, do pay to the defendant Joseph Maitland his costs by him about his defence in said circuit court expended, and also his costs about the prosecution of his appeal and supersedeas in this Court in this behalf expended.
The Other Judges Conourred.
Decrees Reversed. Bill Dismissed.