The judgment of the court was pronounced by
Rost, J.We are of opinion that there is no error in the judgment in this case. The defendant sold the plaintiffs two tracts ofland, with the right of way from one to the Other over his own plantation. The ground necessary for the exercise of the right of way not having been designated in the sale, the defendant, was bound to fix, within a reasonable time, the place where it was to be exercised. C. C. 775, 2455. The defendant, so far from complying with this legal requisite, has made a ditch and erected a levee across the land on which the servitude is due, having neither performed, nor offered to perform, all that which on his part he was bound to perform. The plaintiffs are not in default, and cannot be compelled to pay that portion of the price for which the order of seizure issued. C. C. 1907, 2450, 2451. 11 L. R. 551.
It is urged, that the judgment is erroneous in arresting the payment of so large a portion of the price, when the act which the defendant failed to perform was of such small value in comparison with the value of the land. The record does not enable us to ascertain the relative value of the right of way; and if it did, the contract is entire, and cannot be divided by us. The cases cited from 3 L R. 3, and 4 L. R. 465, are not applicable to the case of a purchaser withholding payment of the price on account of the partial inexecution of the contract on the part of the vendor.
The judgment is affirmed, with costs.