Mr. Justice Bean
delivered the opinion of the court.
1, 2. It is contended on the part of defendants that the complaint is insufficient, and that the court has no jurisdiction of the subject of the suit, for the reason that the complaint does not show that the land is not in the possession of another.
In Maxwell v. Frazier, 52 Or. 183, at page 188 (96 Pac. 548, at page 550: 18 L. R. A. [N. S.] 102), Mr. Justice Eakin said:
“In several cases in this court, it has been held that the defendant had waived his right to object to the jurisdiction of the court when he had answered, without objection, to the jurisdiction, and had claimed affirmative relief. Kitcherside v. Myers, 10 Or. 21; Municipal Security Co. v. Baker County, 33 Or. 338 (54 Pac. 174) ; O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004) ; Killgore v. Carmichael, 42 Or. 618 (72 Pac. 637). But a distinction must be made between an entire lack of matter of equitable cognizance and cases within the field of equitable jurisdiction, in which an element essential to complete jurisdiction is lacking. In the former, the objection is not waived by failure to interpose it at the proper time,' but it is available at any stage of the proceeding; while in the latter, if the objection is not seasonably interposed, it will be deemed to be waived. In such a case, the subject of the controversy is equitable, and the relief sought such as equity alone can grant. This distinction is well stated in 16 Cyc. pp. 127, 128, where the authorities are collated. If the case is within the general field of equitable jurisdiction, the absence of any condition which might defeat the jurisdiction, if seasonably raised, may be waived, provided it is competent for the court to grant the relief sought, and it has jurisdiction of the subject-matter. The application • of the doctrine of waiver in equity cases is. practically restricted to cases of con[437]*437current jurisdiction. This is the ground of the holding in Kitcherside v. Myers, 10 Or. 21, where it is held that the right of either party to the land in question is equitable, and the objection ‘that a court of equity would not take jurisdiction, because the plaintiff had an adequate remedy at law,’ comes too late after answering.”
In the latter case, 10 Or. 21, at page 23 of the opinion, Chief Justice LORD said:
“Our view is well expressed in Creely v. Bay State Brick Co., 103 Mass. 515, in which the court say: ‘An objection of this kind should have been made on demurrer, or at least should have been specifically relied upon in the answer, and not raised for the first time at the hearing upon pleadings which suggest no such ground of defense. Under such circumstances, the court could hardly do otherwise than retain the case, provided it is comnetent to grant relief, and have jurisdiction of the subject-matter, and of this we have no doubt’.”
O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004), was a suit to remove a cloud from the title to real estate, of which plaintiff was out of possession. Mr. Justice WOLVERTON, in the opinion in this case, said:
“That a court of equity has jurisdiction to remove a cloud from title is undoubted; but, as a condition of the court’s exercising it, the plaintiff must be in possession, if he is the owner of the legal title, under such circumstances that the law can afford him ample relief. This condition, however, can be waived by the parties; and if the court proceeds with the exercise of jurisdiction it can grant the equitable relief appropriate in such cases.”
In Municipal Security Co. v. Baker County, 33 Or. 338 (54 Pac. 174), the relief sought was purely equitable, but the defendant objected to the jurisdiction, because plaintiff had an adequate remedy at law; and it was held that the objection was waived by answering to the merits.
Unless the matter is wholly beyond the domain of equitable cognizance, no objection to the jurisdiction of [438]*438equity can be made for the first time at the hearing or trial, or where the party first presents it after the testimony has been taken, or a large portion thereof. This objection should be taken at the earliest opportunity. 16 Cyc. 129, 130; Kaufman v. Wiener, 169 Ill. 596 (48 N. E. 479) ; Johnson v. Miller, 55 Ill. App. 168; Reynes v. Dumont, 130 U. S. 354, 395 (9 Sup. Ct. 486: 32 L. Ed. 934.).
The above authorities are so clearly in point that but little remains to be said. It is not questioned that the court had general equity .jurisdiction to grant the relief prayed for. The want of possession of the land by the plaintiff was waived by the defendants when they failed to plead such want of possession, either by demurrer or by a special plea in their answer, and pleaded to the merits.
Counsel for defendants in the above contention cite and rely upon the case of Moore v. Shofner, 40 Or. 488 (67 Pac. 511), which we do not deem to be in point, for the reason that in the case cited the defendant first filed an answer, denying plaintiff’s allegation that no one was in possession, asserting actual possession in himself, averring that the court was without jurisdiction, and praying that the suit be abated. This answer was treated as in abatement, and the plea denied by the court. Thereupon the defendant filed another answer, in which, after repeating the first, he denied plaintiff’s title, asserted title in himself and possession for more than 10 years, pleaded an estoppel,. and again denied the court’s jurisdiction.
3. We will next take up the claim of defendants that the judgment in the ejectment action is res adjudicata. In the case of Fire Association v. Allesina, 45 Or. 154, at page 160 (77 Pac. 123, at page 126), Mr. Justice Bean, speaking for the court, uses the following language:
“Under our system, a defendant is entitled to set up as many defenses as he may have; and, if one of them is at [439]*439law and another in equity, he may, if he sees proper, set his legal defense up by answer, and at the same time file a complaint in equity in the nature of a cross-bill, setting forth his equitable defense; or he may depend alone upon his legal defense, and, if unsuccessful, resort to an original suit to enforce his equitable rights” — citing Hill v. Cooper, 6 Or. 181; McMahan v. Whelan, 44 Or. 402 (75 Pac. 715).
In the case of Spaur v. McBee, 19 Or. 76 (23 Pac. 818), this court, at page 79, passed upon the question and reaffirmed the principle laid down in a former case in the following language:
“This leaves the question of estoppel to be considered. In Hill v. Cooper, 6 Or. 182, the precise question involved here came before this court for the first time for adjudication; and, after a careful examination of the point, it was held that, under the statute which allowed an equitable defense by cross-bill in actions at law, a party might rely upon a legal defense in an action, without being thereby precluded from afterwards asserting his equitable title in an original suit.”
In Borcherling v. Ruckelshaus,
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Mr. Justice Bean
delivered the opinion of the court.
1, 2. It is contended on the part of defendants that the complaint is insufficient, and that the court has no jurisdiction of the subject of the suit, for the reason that the complaint does not show that the land is not in the possession of another.
In Maxwell v. Frazier, 52 Or. 183, at page 188 (96 Pac. 548, at page 550: 18 L. R. A. [N. S.] 102), Mr. Justice Eakin said:
“In several cases in this court, it has been held that the defendant had waived his right to object to the jurisdiction of the court when he had answered, without objection, to the jurisdiction, and had claimed affirmative relief. Kitcherside v. Myers, 10 Or. 21; Municipal Security Co. v. Baker County, 33 Or. 338 (54 Pac. 174) ; O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004) ; Killgore v. Carmichael, 42 Or. 618 (72 Pac. 637). But a distinction must be made between an entire lack of matter of equitable cognizance and cases within the field of equitable jurisdiction, in which an element essential to complete jurisdiction is lacking. In the former, the objection is not waived by failure to interpose it at the proper time,' but it is available at any stage of the proceeding; while in the latter, if the objection is not seasonably interposed, it will be deemed to be waived. In such a case, the subject of the controversy is equitable, and the relief sought such as equity alone can grant. This distinction is well stated in 16 Cyc. pp. 127, 128, where the authorities are collated. If the case is within the general field of equitable jurisdiction, the absence of any condition which might defeat the jurisdiction, if seasonably raised, may be waived, provided it is competent for the court to grant the relief sought, and it has jurisdiction of the subject-matter. The application • of the doctrine of waiver in equity cases is. practically restricted to cases of con[437]*437current jurisdiction. This is the ground of the holding in Kitcherside v. Myers, 10 Or. 21, where it is held that the right of either party to the land in question is equitable, and the objection ‘that a court of equity would not take jurisdiction, because the plaintiff had an adequate remedy at law,’ comes too late after answering.”
In the latter case, 10 Or. 21, at page 23 of the opinion, Chief Justice LORD said:
“Our view is well expressed in Creely v. Bay State Brick Co., 103 Mass. 515, in which the court say: ‘An objection of this kind should have been made on demurrer, or at least should have been specifically relied upon in the answer, and not raised for the first time at the hearing upon pleadings which suggest no such ground of defense. Under such circumstances, the court could hardly do otherwise than retain the case, provided it is comnetent to grant relief, and have jurisdiction of the subject-matter, and of this we have no doubt’.”
O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004), was a suit to remove a cloud from the title to real estate, of which plaintiff was out of possession. Mr. Justice WOLVERTON, in the opinion in this case, said:
“That a court of equity has jurisdiction to remove a cloud from title is undoubted; but, as a condition of the court’s exercising it, the plaintiff must be in possession, if he is the owner of the legal title, under such circumstances that the law can afford him ample relief. This condition, however, can be waived by the parties; and if the court proceeds with the exercise of jurisdiction it can grant the equitable relief appropriate in such cases.”
In Municipal Security Co. v. Baker County, 33 Or. 338 (54 Pac. 174), the relief sought was purely equitable, but the defendant objected to the jurisdiction, because plaintiff had an adequate remedy at law; and it was held that the objection was waived by answering to the merits.
Unless the matter is wholly beyond the domain of equitable cognizance, no objection to the jurisdiction of [438]*438equity can be made for the first time at the hearing or trial, or where the party first presents it after the testimony has been taken, or a large portion thereof. This objection should be taken at the earliest opportunity. 16 Cyc. 129, 130; Kaufman v. Wiener, 169 Ill. 596 (48 N. E. 479) ; Johnson v. Miller, 55 Ill. App. 168; Reynes v. Dumont, 130 U. S. 354, 395 (9 Sup. Ct. 486: 32 L. Ed. 934.).
The above authorities are so clearly in point that but little remains to be said. It is not questioned that the court had general equity .jurisdiction to grant the relief prayed for. The want of possession of the land by the plaintiff was waived by the defendants when they failed to plead such want of possession, either by demurrer or by a special plea in their answer, and pleaded to the merits.
Counsel for defendants in the above contention cite and rely upon the case of Moore v. Shofner, 40 Or. 488 (67 Pac. 511), which we do not deem to be in point, for the reason that in the case cited the defendant first filed an answer, denying plaintiff’s allegation that no one was in possession, asserting actual possession in himself, averring that the court was without jurisdiction, and praying that the suit be abated. This answer was treated as in abatement, and the plea denied by the court. Thereupon the defendant filed another answer, in which, after repeating the first, he denied plaintiff’s title, asserted title in himself and possession for more than 10 years, pleaded an estoppel,. and again denied the court’s jurisdiction.
3. We will next take up the claim of defendants that the judgment in the ejectment action is res adjudicata. In the case of Fire Association v. Allesina, 45 Or. 154, at page 160 (77 Pac. 123, at page 126), Mr. Justice Bean, speaking for the court, uses the following language:
“Under our system, a defendant is entitled to set up as many defenses as he may have; and, if one of them is at [439]*439law and another in equity, he may, if he sees proper, set his legal defense up by answer, and at the same time file a complaint in equity in the nature of a cross-bill, setting forth his equitable defense; or he may depend alone upon his legal defense, and, if unsuccessful, resort to an original suit to enforce his equitable rights” — citing Hill v. Cooper, 6 Or. 181; McMahan v. Whelan, 44 Or. 402 (75 Pac. 715).
In the case of Spaur v. McBee, 19 Or. 76 (23 Pac. 818), this court, at page 79, passed upon the question and reaffirmed the principle laid down in a former case in the following language:
“This leaves the question of estoppel to be considered. In Hill v. Cooper, 6 Or. 182, the precise question involved here came before this court for the first time for adjudication; and, after a careful examination of the point, it was held that, under the statute which allowed an equitable defense by cross-bill in actions at law, a party might rely upon a legal defense in an action, without being thereby precluded from afterwards asserting his equitable title in an original suit.”
In Borcherling v. Ruckelshaus, 49 N. J. Eq. 340 (24 Atl. 547), the court held that, where a defendant, in an action at law, offers to prove an estoppel in pais against the plaintiff, and the offer is overruled by the trial court, on the ground that the defense is not cognizable in such action, and the defendant takes no exception, but acquiesces in such ruling as the law of the case, he is not estopped from filing a bill in a court of equity setting up the same facts, to enjoin the enforcement of a judgment obtained against him in the said action.
In Clark v. Hindman, 46 Or. 67, 70 (79 Pac. 56, 58), Mr. Justice Mooke, speaking for the court, says:
“It is also maintained by defendants’ counsel that, in the action of ejectment brought against her, plaintiff had an opportunity to set up, by way of cross-bill, the facts [440]*440now relied upon as the basis of equitable relief; but, not having done so, she is estopped by the judgment rendered therein. Our statute allows an equitable defense by cross-bill in actions at law. Section 391, B. & C. Comp, (now L. O. L. § 390) ; and in construing this provision it has been held that a party may rely upon a legal defense, without being thereby precluded from after-wards asserting his equitable title in an original suit.”
4. The purpose of this suit is to remove a cloud upon plaintiff’s title, which was created by obtaining the administrator’s deed of the land. This deed, as shown by the records, purported upon its face to convey the land as the property of the estate of George Alexander Bows-man, deceased. One-half of this land is included in the judgment in the action at law. If plaintiff, as defendant in the action of ejectment, had made a successful legal defense as to his possession of that portion of the land, the cloud upon the title would have still remained. His remedy at law was not complete or adequate. Both the administrator’s deed and the judgment are alleged to have been fraudulently obtained. This judgment is pleaded by defendants as an estoppel, and it is shown to be based solely upon a false and fraudulent claim. To hold that plaintiff is thereby estopped would be, in effect, to decide that a fraudulent judgment cannot be set aside in a suit in equity attacking the same.
5. There is a well-established and clearly defined equitable jurisdiction which will enable courts of equity to restrain the enforcement of an unconscionable judgment or decree procured through fraud, or through some unavoidable accident or excusable mistake of the defendant in the action or suit. Handley v. Jackson, 31 Or. 552, 555 (50 Pac. 915: 65 Am. St. Rep. 839) ; 3 Pomeroy’s Equity Jurisprudence (2 ed.) § 1364.
6. The term “fraud”, as used here, is to be taken in its common and direct sense, and means the perpetration of [441]*441an intentional wrong, or the breach of a duty growing out of a fiduciary relation. To obtain relief on this ground, it is necessary that the fraud charged should be clearly stated and proved, and it must be shown that the fraud was practiced or participated in by the judgment creditor; that it was actually effective in bringing about the judgment which was rendered; that the plaintiff in equity has a good defense to the action on the merits, and has no other adequate means of obtaining relief against the judgment or avoiding its consequences; and that his situation is in no way due to his own negligence or lack of proper diligence. 23 Cyc. 1022.
It is stated in 1 Black, Judgments (Section 365), that equity will relieve a party against a judgment obtained against him, if he was prevented from setting up his defense by fraud or accident, or the act of his adversary, without any negligence or fault on his own part. The object of an injunction to stay proceedings at law is to prevent the party against whom it issues from availing himself of an unfair advantage, resulting from fraud, accident, mistake, or otherwise, and which would therefore be against conscience. See Perry v. Johnston (C. C.) 95 Fed. 322.
In Marine Insurance Co. v. Hodgson, 7 Cranch, 332 (3 L. Ed. 362), Mr. Chief Justice Marshall states the rule as follows:
“Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negli[442]*442gence in himself or his agents, will justify an appliaction to a court of chancery.”
See, also, Hendrickson v. Hinckley, 17 How. 443 (15 L. Ed. 123) ; Brown v. County of Buena Vista, 95 U. S. 157 (24 L. Ed. 422) ; Crim v. Handley, 94 U. S. 652 (24 L. Ed. 216) ; Bryant v. Williams, 21 Iowa 329.
The party invoking the jurisdiction of equity in such a case must not only show some adequate ground of interference with the judgment, but must also disclose a meritorious and sufficient defense to the law action, or at least to some substantial part or portion thereof, in order to show that it would be against good' conscience to execute the judgment. See Sauer v. City of Kansas, 69 Mo. 46.
7. It is very clear from the evidence on the part of plaintiff that Alexander Bowsman purchased a mining claim of defendant Anderson; that he paid him therefor; and that the Bowsman estate was not indebted to the latter. Anderson’s whole case is founded on a false and fraudulent claim. The judgment obtained by him upon default, with the assistance of his co-defendant, is based solely upon such false claim, and in good conscience cannot be enforced. Plaintiff’s evidence is uncontradicted. Neither of the defendants testified or gave any reasons for not so doing. The evidence tends to show that the defendant F. S. Slater was interested in the proceedings by Anderson to obtain the land, and had notice of plaintiff’s interest therein. It was his duty, as guardian ad litem, when he accepted that position, to protect the interests of his ward, which the evidence shows he failed to do.
It appears that the county judge refused to approve the final account in the probate proceedings containing Anderson’s claim. Whatever might be the condition of this claim against the Bowsman estate, the testimony shows that the minor plaintiff, George A. Bowsman, was [443]*443the owner in fee of the real property in question;-and that is uneontradicted. Some evidence is introduced on the part of defendants tending to show the reason why it was thought that the name of the plaintiff’s father was George Alexander Bowsman; but there is nothing to show that he ever owned the land. The circuit court based its decree upon the question of possession of the real property and the judgment at law, and did not pass upon the merits of the claim of the defendant Alexander Bows-man. It does not appear that the fraudulent acts of defendants were set out in the application made to vacate the judgment in the ejectment action. The grounds of relief in this suit are not the same as those assigned as a reason for opening the default in the action at law, and the case of Thompson v. Connell, 31 Or. 232 (48 Pac. 467: 65 Am. St. Rep. 818), cited by defendants, is not applicable.
The plaintiff is an infant. F. S. Slater was appointed as his guardian ad litem in the probate proceedings. Plaintiff testified that he was informed by his attorney that Slater would attend to the property, and that he would have to do what was right. In the action of ejectment, the plaintiff’s mother, Mrs. McLellan, was first appointed as guardian ad litem, for her son; but, while a summons was served upon her, she was not notified of the appointment, and made no appearance in the action. Afterwards the defendant F. S. Slater was named to serve in such capacity. Slater never consulted with plaintiff or his mother in regard to the interests of the minor, and made no defense to the action. Prior to this suit, the infant plaintiff had not “had his day in court,” to afford him a reasonable opportunity to assert his title to the land.
The probate proceedings and the administrator’s deed, referred to, are fraudulent and void as to the land of George Austin Bowsman, plaintiff, and should be .-an[444]*444celed, and the defendants should be enjoined from interfering with the real property.
The decree of the lower court will therefore be reversed, and one entered here in accordance with this opinion.
Reversed.