Bleckley, Chief Justice.
1. As there was no demise in the declaration from Caswell, his heirs or administrator, there could be no recovery by the plaintiff’ below on his title; therefore all contest over his purchase at either of the sheriff’s sales was irrelevant and nugatory. Showing title in Caswell would not tend to support the action, but would be the certain defeat of it, since it would negative the right of all other persons, save his heirs or legal representatives, to demise the premises to John Doe.
2. It surely cannot be necessary to enter into any course of reasoning, or cite authority, to establish the proposition that no recovery can be had in ejectment on a demise from the sheriff’ who has seized land and sold it by virtue of judgments and writs of fieri facias against another person. The sheriff acquires no title to land by levying upon it; and there is no evidence in the record that this sheriff’ ever acquired or had title otherwise. But suppose he obtained title by levying upon the land, he sold twice and made two deeds to Caswell, and both these deeds were introduced in evidence by the plaintiff. After this, how could it be imagined that a recovery could be had upon a demise from thé sheriff?
3. There could be no recovery on the demise from Hobby, trustee, because the deed from him to Mrs. [10]*10Bunch and her children passed title out of him, whether Mrs. Bunch alone acquired it, or whether it passed to her and her children jointly as tenants in common. We think, however, as her children were in being at the time the deed was executed, that she took only an undivided share, and that each of them took one share also. Ewing v. Shropshire, 80 Ga. 374. So far, therefore, from failing to recover as much land as the plaintiff was entitled to, the recovery, being for one eighth of the premises, was more than the state of the pleadings and the evidence under them warranted. In strict law, nothing whatever was recoverable upon any demise or all the demises in the declaration.
4. The refusal of the court to allow the proposed equitable matter to be engrafted upon the action of ejectment by amendment, is conclusively justified by the state of the pleadings as they stood when the amendment was offered. The proposed amendment was entirely too remote from the original cause of action and the parties thereto to be germane to the controversy set out in the declaration. If the administrator of Caswell has any right to recover from the Bunches money paid by his intestate for their benefit but not at their request, or to be subrogated to the rights of Hobby as plaintiff in fi. fa., let him bring a direct action therefor, and not present this claim as a mere weld on an action of ejectment brought to recover the land upon demises from other persons to John Doe. We think the two causes of action are wholly separate and distinct, not only as to subject-matter but as to the parties mentioned in the pleadings.
5. What we have said is quite sufficient to dispose of the bill of exceptions brought by the plaintiff’; but as another question of considerable interest was argued, and as we have investigated it laboriously and somewhat thoroughly, we will express our opinion upon it. [11]*11That question is, whether the judgment foreclosing the mortgage made by Mrs. Bunch to Hobby, trustee, was or was not void as against Caswell, who purchased the property at a sheriff’s sale made under and by virtue of an execution founded on the judgment. The judgment of foreclosure recites service of the rule nisi in these terms:
“And it appearing that a copy of said rule nisi has been served on said defendant throe months before the term of this court, and that said defendant has shown no cause to the contrary, and still neglects and refuses to pay the amount due on said mortgage, it is therefore adjudged by the court that the equity of redemption in and to said mortgaged premises be and the same is hereby barred and forever foreclosed. And it is further ordered and adjudged that said plaintiff do recover,” etc.
The sheriff’s return of service, upon the rule nisi to foreclose the mortgage, is in these words :
“Served a copy of the within rule, etc. upon the defendant, Mrs M. A Bunch, by leaving same at her residence, December 21st, 1883. E. J. Ivy, D. Sheriff.”
Judgment was rendered March 25th, 1884, and the sheriff s return is a part of the record of the proceeding to foreclose which resulted in the judgment. The statute regulating the foreclosure of mortgages upon realty (code, §3962), provides that the'rule “ shall be published once a month for four months, or served upon the mortgagor or his special agent or attorney at least three months previous to the time at which the money is directed to be paid into court.” Only the sheriff or his deputy can serve the rule. Falvey v. Jones, 80 Ga. 130. In this State,, service of legal process, when made by the sheriff' or deputy-sheriff, is evidenced by ’an official return. Such is the uniform practice, and there is no provision of law for verifying official service by any other means. It follows that when the judgment recites service and there is a return, the recital is always based upon the return, and the two are to be construed together. This recital, therefore, being silent as to the [12]*12mode of service, and the return showing that the mode was not personal service but by leaving a.copy at the defendant’s residence, the conclusion results that the rule was served as the return specifies, and not otherwise. All this appeared and still appears on the face of the record, that is, on what is termed in some jurisdictions, “the judgment-roll.” But the only service which the sheriff could legally make, and the only service effected less than four months before the term of court at which the judgment of foreclosure was rendered which could be valid, would be personal service. Service by leaving a copy at the defendant’s residence is unauthorized and insufficient. Dykes v. McClung, 74 Ga. 382; Meeks v. Johnson, 75 Ga. 630. Due service is no less requisite to give the court jurisdiction of the person and the subject-matter in foreclosure proceedings than in ordinary personal actions. In Moore v. Starks, 1 Ohio St. 389, which was such a proceeding, it was held—no doubt correctly—that before the court can act, it is necessary that it should acquire jurisdiction over the person of the defendant as in any other adversary proceedings. It was held that jurisdiction over both the person and the thing is absolutely requisite to the validity of the judgment. In ordinary actions, “jurisdiction over the defendant is obtained by his voluntary appearance in the action, or by the service of process. . . . If a defendant neither appears nor is served with process, a judgment against him is void.” Freeman on Void Judicial Sales, §5. Where there has been no service, the judgment is a nullity. Parker v. Jennings, 26 Ga. 140.
There is a well-founded distinction between no service and irregular or defective service, the latter rendering the judgment voidable only. In this case the so-called service was, legally speaking, none at all; for as the only mode (except by publication for four months) which our law recognizes as any service whatever of a [13]*13rule nisi
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Bleckley, Chief Justice.
1. As there was no demise in the declaration from Caswell, his heirs or administrator, there could be no recovery by the plaintiff’ below on his title; therefore all contest over his purchase at either of the sheriff’s sales was irrelevant and nugatory. Showing title in Caswell would not tend to support the action, but would be the certain defeat of it, since it would negative the right of all other persons, save his heirs or legal representatives, to demise the premises to John Doe.
2. It surely cannot be necessary to enter into any course of reasoning, or cite authority, to establish the proposition that no recovery can be had in ejectment on a demise from the sheriff’ who has seized land and sold it by virtue of judgments and writs of fieri facias against another person. The sheriff acquires no title to land by levying upon it; and there is no evidence in the record that this sheriff’ ever acquired or had title otherwise. But suppose he obtained title by levying upon the land, he sold twice and made two deeds to Caswell, and both these deeds were introduced in evidence by the plaintiff. After this, how could it be imagined that a recovery could be had upon a demise from thé sheriff?
3. There could be no recovery on the demise from Hobby, trustee, because the deed from him to Mrs. [10]*10Bunch and her children passed title out of him, whether Mrs. Bunch alone acquired it, or whether it passed to her and her children jointly as tenants in common. We think, however, as her children were in being at the time the deed was executed, that she took only an undivided share, and that each of them took one share also. Ewing v. Shropshire, 80 Ga. 374. So far, therefore, from failing to recover as much land as the plaintiff was entitled to, the recovery, being for one eighth of the premises, was more than the state of the pleadings and the evidence under them warranted. In strict law, nothing whatever was recoverable upon any demise or all the demises in the declaration.
4. The refusal of the court to allow the proposed equitable matter to be engrafted upon the action of ejectment by amendment, is conclusively justified by the state of the pleadings as they stood when the amendment was offered. The proposed amendment was entirely too remote from the original cause of action and the parties thereto to be germane to the controversy set out in the declaration. If the administrator of Caswell has any right to recover from the Bunches money paid by his intestate for their benefit but not at their request, or to be subrogated to the rights of Hobby as plaintiff in fi. fa., let him bring a direct action therefor, and not present this claim as a mere weld on an action of ejectment brought to recover the land upon demises from other persons to John Doe. We think the two causes of action are wholly separate and distinct, not only as to subject-matter but as to the parties mentioned in the pleadings.
5. What we have said is quite sufficient to dispose of the bill of exceptions brought by the plaintiff’; but as another question of considerable interest was argued, and as we have investigated it laboriously and somewhat thoroughly, we will express our opinion upon it. [11]*11That question is, whether the judgment foreclosing the mortgage made by Mrs. Bunch to Hobby, trustee, was or was not void as against Caswell, who purchased the property at a sheriff’s sale made under and by virtue of an execution founded on the judgment. The judgment of foreclosure recites service of the rule nisi in these terms:
“And it appearing that a copy of said rule nisi has been served on said defendant throe months before the term of this court, and that said defendant has shown no cause to the contrary, and still neglects and refuses to pay the amount due on said mortgage, it is therefore adjudged by the court that the equity of redemption in and to said mortgaged premises be and the same is hereby barred and forever foreclosed. And it is further ordered and adjudged that said plaintiff do recover,” etc.
The sheriff’s return of service, upon the rule nisi to foreclose the mortgage, is in these words :
“Served a copy of the within rule, etc. upon the defendant, Mrs M. A Bunch, by leaving same at her residence, December 21st, 1883. E. J. Ivy, D. Sheriff.”
Judgment was rendered March 25th, 1884, and the sheriff s return is a part of the record of the proceeding to foreclose which resulted in the judgment. The statute regulating the foreclosure of mortgages upon realty (code, §3962), provides that the'rule “ shall be published once a month for four months, or served upon the mortgagor or his special agent or attorney at least three months previous to the time at which the money is directed to be paid into court.” Only the sheriff or his deputy can serve the rule. Falvey v. Jones, 80 Ga. 130. In this State,, service of legal process, when made by the sheriff' or deputy-sheriff, is evidenced by ’an official return. Such is the uniform practice, and there is no provision of law for verifying official service by any other means. It follows that when the judgment recites service and there is a return, the recital is always based upon the return, and the two are to be construed together. This recital, therefore, being silent as to the [12]*12mode of service, and the return showing that the mode was not personal service but by leaving a.copy at the defendant’s residence, the conclusion results that the rule was served as the return specifies, and not otherwise. All this appeared and still appears on the face of the record, that is, on what is termed in some jurisdictions, “the judgment-roll.” But the only service which the sheriff could legally make, and the only service effected less than four months before the term of court at which the judgment of foreclosure was rendered which could be valid, would be personal service. Service by leaving a copy at the defendant’s residence is unauthorized and insufficient. Dykes v. McClung, 74 Ga. 382; Meeks v. Johnson, 75 Ga. 630. Due service is no less requisite to give the court jurisdiction of the person and the subject-matter in foreclosure proceedings than in ordinary personal actions. In Moore v. Starks, 1 Ohio St. 389, which was such a proceeding, it was held—no doubt correctly—that before the court can act, it is necessary that it should acquire jurisdiction over the person of the defendant as in any other adversary proceedings. It was held that jurisdiction over both the person and the thing is absolutely requisite to the validity of the judgment. In ordinary actions, “jurisdiction over the defendant is obtained by his voluntary appearance in the action, or by the service of process. . . . If a defendant neither appears nor is served with process, a judgment against him is void.” Freeman on Void Judicial Sales, §5. Where there has been no service, the judgment is a nullity. Parker v. Jennings, 26 Ga. 140.
There is a well-founded distinction between no service and irregular or defective service, the latter rendering the judgment voidable only. In this case the so-called service was, legally speaking, none at all; for as the only mode (except by publication for four months) which our law recognizes as any service whatever of a [13]*13rule nisi to foreclose a mortgage, is personal.service, the leaving of a copy of the rule at the defendant’s residence can he no more effectual than the leaving of it at the residence of any other person. Were the sheriff to leave it at his own residence and return that he had done so and thereby served the defendant, the service would be quite as good as that which was returned in this instance. That the return is a part of the record and must be noticed even by a purchaser, in connection with the judgment reciting service, is well-established by respectable authority. Settlemier v. Sullivan, 97 U. S. 444; Botsford v. O’Connor, 57 Ill. 73; Pollard v. Waggener, 13 Wisc. 569; 1 Herm. Estop, and Res Adjudicata, §362 ; Freem. Judgts. §125 ; and see Wade on Notice, §§1361 to 1382. There is nothing contrary to this position in Hightower v. Williams, 38 Ga. 597, in which case the recital in the judgment showed due service, whether construed alone or in connection with the rest of the record. The effort was, not to supplement, explain and qualify by other parts of the same record, but to overcome the recital by extrinsic testimony. Here, on the contrary, there is no resort to extrinsic evidence, but only an application of the rule that the whole record or judgment-roll is to be-read together.
6. The bill of exceptions brought by the defendants below, which goes only to rulings of the court touching the exclusion of evidence previously received, is without the shadow of merit; for although the maker of a note given for the purchase money of fertilizers cannot waive the right to set up as a defence to an action upon the note the illegality of the contract for lack of inspection of the fertilizers, or for lack of any other requisite to render the sale and purchase compatible with the law of the land, yet by failure to repudiate the waiver and set up and establish the illegality as a defence to that action, the right to raise the question is [14]*14forever gone when final judgment has been rendered. The judgment is conclusive upon all defences which could have been presented in the exercise of due diligence. The court did right to rule out and withdraw from the jury all evidence upon that subject. Indeed none of it ought to have been admitted.
Judgment on both bills of exceptions affirmed.