
    Mary E. Rucker et al v. Moses Liddell.
    Where a party sells land to another, a right of way being reserved to the vendee, the vendor within a reasonable time, is hound to point out the place where the right of way is to he exercised. C. G. 1907, 2450, 2451.
    Where a party to a sale of land is hound to furnish a right of way, he cannot enforce the payment of the price until he has complied with that obligation.
    APPEAL from the District Court of St. Mary, Voorhies, J.
    
      Splane and Cook, for plaintiffs,
    submitted the following points and authorities : 1. The right of way or passage formed part of the object of the sale; it was the duty of Lid-dell to furnish the passage before he could bring suit for the recovery of the price. C. C. 1907, 2450, 2451, 2452, 2455, 2458 and 2459. 2. There was an active violation of this contract on the part oí Liddell, by putting up a barn and fence on the place where the passage was given. C. C. 2926, 11 L. R. 289. 3. The general rule that the delivery of immovables accompanies the act of sale, ceases to be applicable in this case, it is an exception. C. C. 2455, 2458. 4. The seller, before he can expose or claim payment of the price, to exhibit a valid and unencumbered title. 11 L. R. 551. 5. The sale of a thing belonging to another is void. C. C. 2427. 1st Ann. 284. 3d Ann. 326. 6. An injunction lies to prevent any act which, if consummated, would afford a ground for a claim for damages. 5 N. S. 501. 7. If the place where the servitude that is due is not designated in the title, he who owes the servitude is bound to fix the place where it is to be exercised. C. C. 775, 773, 776 et seq. 1 R. R. 321. 8. The creation of a servitude is an alienation of a part of the property. C. C. 727, 728, 729. As to delivery: C. C. 2462, 2465, 2466.
    
      Wilson and McClarty, for defendant,
    contended : 1. That he has fully performed his contract; he has delivered the land and the right of way to the plaintiffs, and they were the objects of the sale for which the price was to be given. That the time for designating the right of way was not fixed by the contract of the parties, and the obligation imposed upon the defendant, being for the benefit of plaintiffs, is to be fixed by the demand of the plaintiffs. In those cases where by the terms of the contract no particular time is fixed for the performance, it is presumable that it is to be discharged at the demand'of the obligee, and not before. 6 N. S. 229. 2. But even if the defendant was bound to designate the place for the exercise of the right, without regard to a precedent request by the plaintiffs, his failure to "do so was a passive breach of the contract; and in order for plaintiffs to avail themselves of any legal remedy for the injury such breach may have occasioned, they must put defendants in default. C. C. 1906 and 1927. The rule requiring a creditor to put his debtor in default as a preliminary step to legal redress for the passive breach of a contract, applies as well to the case in which it is pleaded as an exception as where it is made the ground of a direct action. 15 L. R. 297. In this case there is no evidence of demand being made by the plaintiffs on the defendant to designate aplace for the exercise of the right of way, until the institution of this suit; shortly after which the defendant caused a space of thirty-two feet to be left along the rear line of Richardson’s land, for the exercise of the right of way. 3. But even if it be conceded that the defendant has failed to perform his contract, and such ftilure affords the plaintiffs good cause to obtain an injunction, the judgment of the court a quo 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 so small value in comparison with the value with the other objects of the sale. Where an agreement contemplates the performance of several acts, a partial performance will authorize the recovery of the price, subject to a deduction of such damages as may result from the failure to discharge the other parts of the agreements. 3 L. R. 384. 4 L. R. 465. The law does not allow the buyer to retain the thing purchased and the price, and as the plaintiffs do not demand a rescission of the contract, they are entitled to withhold only such a part of the price as may be sufficient to satisfy them for the damages sustained by the failure of the defendant to perform his part of the contract. There was no such damages sustained. The evidence shows that plaintiffs used a nearer and more convenient way over the land of Oliver Nelson than he could have obtained over the land of Liddell, and by the fact that he never demanded a way from the defendant.
    The court below states in the opinion rendered in this cause that the defendant, by the enclosure along his rear line, obstructed the exercise of the right of way, and that this obstruction-authorizes the plaintiffs to withhold the price. But we contend : 1. That the place of the right of way not being designated could not be obstructed by the levee and ditches. 2. That if it was obstructed, it is a trespass which entitled plaintiffs to compensation for such damages as they have sustained thereby, but does not authorize them to withhold the price, unless they sought and are entitled to a rescission of the contract, except such a portion of it as would satisfy them for such damages. That no damages being sustained by them, they have no right to withhold the price or any part thereof. Wherefore we contend that the judgment of the court a quo is erroneous, that the injunction herein should have been dissolved with damages and costs.
   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.  