¶1The opinion of the Court was delivered by
¶2The Circuit Court struck out the answer of the defendants as “insufficient and irresponsive to the complaint.” An order setting aside the order of the Circuit Court has already been entered, and it only remains for us to state the grounds on which that order was based.
¶3The answer was undoubtedly sufficient. The action was against the defendants as tenants of the plaintiff to recover damages for waste and contained a prayer for an injunction to stay waste. The answer alleged that the lands were purchased and in part paid for by the defendant, A. B. Amaker, for himself and his wife, and that title was to be taken in the name of the plaintiff for the benefit of the defendants, and with the distinct understanding that a conveyance should be made by the plaintiff in the manner stated in the answer. The answer prayed that the-plaintiff be charged as trustee and compelled to convey as he had agreed. The cause was at issue as- to the facts alleged and denied by the parties respectively.
¶4The matter of the answer constituted an equitable defense to the action and ground for affirmative equitable relief. Such a defense is proper under the Code and cannot be stricken out.
¶5The objection that the answer was not responsive to the complaint cannot be taken under the Code. If a defendant fails to deny any matter of fact charged by the complaint and material to the case, the only effect is that the charge of the complaint as to such matter stands admitted by answer. — Code, § 191. .In this respect an answer under the Code differs from an answer to a bill in equity under the former practice, where the complainant could gain no advantage by the silence of the defendant, and, therefore, had a right to put him to his answer as to all matters alleged by the bill of complaint and material to the case.
¶6*101As there was no ground for striking out the answer, it is not material to the present case to consider the refusal of the Court to allow an amendment; but as the course pursued by the Court was entirely inconsistent with the rule as to amendments under the Code, it should not pass unnoticed. Applications to amend before trial, made in good faith, should be allowed where the nature of the amendment is such as the Code permits. The Court in such cases cannot arbitrarily refuse the amendment, but may impose reasonable terms to compensate any injury that may result to the opposite party from the allowance of such amendment. — Ahrens vs. State Bank, 3 S. C., 410.
¶7In the present ease no ground for refusing the amendment is stated. When an amendment is refused, the ground of such refusal should appear, so that this Court may judge of its sufficiency in point of law.