It appears by the agreed statement of facts that the plaintiffs claim title to the premises described in their bill by virtue of a mortgage dated July 1, 1850. On the 11th of April 1857 they commenced a suit to foreclose this mortgage, and obtained a judgment of foreclosure, and received possession under a writ of habere facias issued upon the judgment July 22, 1859. A construction was given to the mortgage in 4 Allen, 80. A motion is now made by the defendants that the agreed statement of facts be discharged, on the ground that the defendants have lately discovered that the mortgage had no valid seal. But if this motion were granted, it would be of no avail to the defendants. The plaintiffs’ title now rests upon their judgment of foreclosure. The mortgage is merely the instrument of evidence by which that judgment was obtained; and if the defendants could now invalidate the mortgage as evidence, the validity of the judgment would yet remain, and the plaintiffs’ title would be unaffected. The motion must therefore be denied.
It is contended that by one of the stipulations of the mortgage, the foreclosure is not to be absolute, but is to remain open, so that, by paying the interest due, the mortgagors and their assigns are entitled to the property. It is not necessary to discuss the construction which is to be given to that clause. The effect of the judgment of foreclosure is determined by statute. Rev. Sts. c. 107, § 1. Gen. Sts. c. 140, § 1. After three years’ peaceable possession under the judgment, the right of redemption was thereby forever foreclosed. Whether it would have been.consistent with the policy of the law to permit a modified judgment to be rendered, need not be discussed.
It is elementary law that the judgment of foreclosure was binding on privies as well as parties. Those of the defendants, who held their title under the mortgagors, subject to th^, mortgage, were bound as privies, and as to them as well as the *341mortgagors the foreclosure has been perfected for several years, and the title of the plaintiffs is absolute. The plaintiffs hold this absolute title in trust for the bondholders and for no other parties, and are to dispose of the property for the sole benefit of their cestuis que trust. It is to be applied at its value in payment of the bonds pro rata. Hedge v. Holmes, 10 Pick. 380. As the Grand Junction Railroad & Depot Company, the Boston & Worcester Railroad Corporation, the European Wharf Company, and the defendants Whiting, Livermore, Adams and Fitch, claim rights in the premises inconsistent with this absolute title of the plaintiffs as trustees of the bondholders, the plaintiffs are entitled to a decree against them declaring the rights of the parties.
Under Gen. Sts. c. 100, \ 16, the court has power to decree a sale and conveyance of the property, and the investment, reinvestment and application of the proceeds of the sale, when it shall appear to be necessary or expedient. The property consists of a railroad, depot grounds, buildings, wharves and docks, and the bill alleges that the wharves are out of repair, and continually require the expenditure of large sums of money for repairs; that the docks have become more o? less filled up with mud, and require to be dredged out at a large expense; that there are upon the premises large stone, brick and slated buildings used as government storehouses for the storage of free goods, and other buildings leased by the plaintiffs for various purposes; that large repairs and improvements must be made beyond the net annual income, and, if they are not made, the premises will depreciate in value. There were three hundred and fifty bonds of one thousand dollars each, having coupons attached for semi-annual interest, secured by the mortgage. The Boston & Worcester Railroad Corporation have become holders of two hundred and forty-four of these bonds; the defendant Pinkerton, and others whom he represents, hold about sixty of them; and the remainder are held by parties not represented riere, and mostly unknown. The Boston & Worcester Railroad Corporation desire that the property may be sold in one lot to the highest bidder; and offer to become purchasers. They also *342desire that the proceeds may be divided among the bondholders pro rata. Pinkerton and others oppose the sale because they contend that they are not obliged to receive their money until it shall become due, and they believe the property will greatly increase in value by being kept till the principal becomes due. But if it is now to be sold, they further contend that it should be sold in separate parcels, so that they may be able to compete with the Boston & Worcester Railroad Corporation in bidding for some portions of it. If it is sold in a single parcel, they say the Boston & Worcester Railroad Corporation, being a large corporation and owning so'many of the bonds, will bé enabled to obtain it without competition and for an inadequate price.
As to these points of difference between the cestuis que trust, the facts are not agreed, and it is necessary to refer the cause to a master in order that they may be ascertained, and that the rights of the weaker as well as the stronger party may be properly protected. In the mean time the cause must stand for further directions, and on the coming in of the master’s report such decree may be made as equity and justice shall require.