after stating the case: The paper-writing of 16 May, 1904, purporting to be a deed executed by W. H. Wood-bury, the plaintiff, as attorney in fact of H. A. Woodbury, and the defendant, was not properly executed to bind H. A. Wood-bury, because it was not signed and sealed by his attorney in fact eo nomine, but only by W. H. Woodbury individually. It was conceded by the defendant to be good as a contract to convey, and it was by its express language not considered effective as a deed, for it stipulates for deeds to be executed proportionately to the property described as the payments are made. It was undoubtedly sufficient to pass the title to the sawmill plant and machinery, and as an executory contract to convey the *680 standing timber. In Hawkins v. Lumber Co., 139 N. C., 160, tbis Court said: “It is an established principle in this State that growing- timber is a part of the realty, and deeds and contracts concerning it are governed by the laws, applicable to that kind of property. Mizzell v. Burnett, 49 N. C., 249; Moring v. Ward, 50 N. C., 272; Mizzell v. Ruffin, 118 N. C., 69.” Timber Co. v. Wilson, 151 N. C., 154.

The two rulings of his Honor chiefly urged upon us by the defendant as erroneous were: 1. His refusal to permit the defendant to show by the record of titles an outstanding title superior to the title of U. A. Woodbury for some of the standing-timber contracted to be sold. 2. His refusal to permit defendant to prove that, by actual count of the trees standing and contracted to be conveyed, there was a shortage of 1,196 in a total of 2,030 trees. In Leach v. Johnson, 114 N. C., 87, it was held that where one contracts for the purchase of land without any agreement for a warranty of title, and thereafter and before the execution of a deed, encumbrances are discovered, he cannot be compelled to take the defective title or pay the bonds given for the price of the land, for an agreement to take a clear deed without warranty is not a waiver of the right to demand a clear title, citing Batchelor v. Macon, 67 N. C., 181; Castlebury v. Maynard, 95 N. C., 281, and other cases.

In Castlebury v. Maynard, supra, Mr. Justice Ashe, speaking for the Court, said: “The contention of the parties presents for our consideration the question whether the plaintiff can make a good title to the land described in the complaint. If he cannot, it would be against equity and good conscience that he should recover the amount of the note in suit, for a purchaser of land is never required to accept a doubtful title. Batchelor v. Macon, 67 N. C., 181; Motts v. Caldwell, 45 N. C., 289.” In Timber Co. v. Wilson, 151 N. C., 154, Mr. Justice Brown, speaking for the Court, said: “It is further contended that the defendants 'cannot make a good title to the timber, independent of the conveyance to the Tilghman Company, and for that reason cannot be made to perform the contract. This might avail the plaintiff if it was resisting the performance on its part, but it cannot avail these defendants, for it is well settled that, though the vendor is unable to convey the title called for by the contract, the purchaser may elect to take what the vendor can give him and hold the vendor answerable in damages as to the rest. Kores v. Covell, 180 Mass., 206; Corbett v. Shulte, 119 Mich., 249; 29 Am. and Eng. Enc., 621.” Wilcoxon v. Calloway, 67 N. C., 463; 1 Warvelle on Vendors, 349; Haynes v. White, 55 Cal., 38; McCroshey v. Ladd, 96 Cal., 455.

*681 Different principles and different requirements apply where a deed has been made and delivered and the purchaser then seeks, as a defense to an action brought to recover the purchase money, to set up damages for a partial failure of title. This difference is illustrated by the cases of Etheridge v. Vernoy, 10 N. C., 113; Foy v. Houghton, 85 N. C., 168; Anderson v. Rainey, 100 N. C., 321; Woodbury v. Evans, 122 N. C., 779.

In Etheridge v. Vernoy, supra, an action brought to recover the balance on a note for the purchase price of land, where the deed had been executed and a note and mortgage given to secure it, this Court said: “In contracts for the sale of land, it is the duty of purchasers to guard themselves against defects of title, quantity, encumbrances and the like; if they fail to do so, it is their own folly, for the law will not afford them a remedy for the consequences of their own negligence. But if representations are made by the bargainor, which may reasonably be relied on by the purchaser, and they constitute a material inducement to •the contract, and are false within the knowledge of the party making them, and they cause damage and loss to the party relying on them, and he has acted with ordinary prudence in the matter, he is entitled to relief. Walsh v. Hall, 66 N. C., 233.”

And this doctrine applies with equal force where the ground of relief, instead of fraudulent representations, is mutual mistake. Wilcoxon v. Calloway, 67 N. C., 463. In that case this Court said: “But upon a contract for 100 acres, even though there is no suggestion that the vendee, for any reason, desired exactly that quantity, or that quantity was of any value except as quantity, yet a deficiency of óne-third must be held material, and would probably entitle the vendee to rescind the contract if he chose to do so, or at all events to an abatement of the price.”

As to the rule for determining the amount of abatement of the price for the deficiency, the Court said: “In this case, however, it does not appear that any part of. the land has been improved, or that there is anything to give any one part of it extraordinary value over any other part, and we do not see why it will not be fair and reasonable to estimate the value of the deficiency at the average price per acre.” This seems to have been adopted by the jury in fixing the value of the 47 trees cut from the Groves land allowed as an abatement.

In view of the authorities above cited, and accepting their reasoning as conclusive upon us, we are of the opinion that his Honor erred in not permitting the defendant to prove a partial failure of title and the shortage or deficiency in the num *682 ber of trees conveyed — which would be in reality a failure of title — and in not permitting the jury to determine the abatement of price to the defendant, if his contentions in these particulars shall be accepted by the jury as true. For these errors, the judgment is reversed and a new trial awarded.

New trial.