Jeffrey D. Kuhn, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1298

Jeffrey D. Kuhn,
Appellant,

vs.

Richard G. Dunn, et al.,
Respondents.

Filed May 1, 2023
Reversed and remanded
Bryan, Judge
Dissenting, Bratvold, Judge

Douglas County District Court
File No. 21-CV-22-983

David C. McLaughlin, Fluegel, Anderson, McLaughlin & Brutlag, Chartered, Ortonville,
Minnesota (for appellant)

Alex T. Mastellar, Isak P. Hawkinson, Rinke Noonan, Ltd., St. Cloud, Minnesota (for
respondents)

Considered and decided by Bratvold, Presiding Judge; Johnson, Judge; and Bryan,
Judge.
SYLLABUS
The intestate transfer of a property interest purchased pursuant to a contract for deed
is not prohibited by an anti-transfer provision in the contract for deed stating that the
purchaser “may not sell, assign, or otherwise transfer [p]urchaser’s interest” without the
seller’s consent.
2
OPINION
BRYAN, Judge
Appellant challenges the district court’s decision dismissing his complaint, which
sought to enjoin respondents from cancelling a contract for deed. Appellant argues that
the district court erred when it determined that, based on this court’s decision in Woodard
v. Krumrie , No. A19- 0800, 2020 WL 996746 (Minn. App. Mar. 2, 2020), rev. denied
(Minn. May 19, 2020),1 the anti-transfer clause2 of the contract for deed precluded intestate
transfers. We conclude that, unlike the assignment of interest at issue in Woodard, the
intestate transfer of the purchaser’s interest in this case was not a sale, assignment, or
transfer made by the purchaser, and was not precluded by the anti-transfer provision of the
contract for deed.
FACTS
In July 2019, Rory B. Dunn 3 entered into a contract for deed with his parents,
respondents Richard G. and Paulette A. Dunn, to purchase the family farm (the farm). 4

1 Because Woodard is not a precedential opinion, the decision reached there does not bind
this court or the district court. Minn. R. Civ. App. P. 136.01 (stating that
“[n]onprecedential opinions . . . are not binding authority.”).

2 The dissent refers to this provision as a “consent-to-transfer clause” because the clause
bars only transfers made without the seller’s consent. While this term reflects the types of
permitted transfers, we nevertheless use the term “anti-transfer clause” because that is the
term used by the district court and the parties.

3 Because both the purchaser and respondents share a last name, we refer to the purchaser
by his first name throughout this opinion.

4 A contract for deed allows a person to purchase property by borrowing from the seller.
In re Butler, 552 N.W.2d 226, 229 (Minn. 1996); see also 25 Larry M. Wertheim,
3
Rory passed away in August 2021 without a will. Rory’s estate—including Rory’s
equitable title to the farm 5—automatically devolved to his 3- year-old son, B.D., by
intestate succession. 6 In May 2022, respondents served appellant Jeffrey D. Kuhn, the
personal representative of Rory’s estate, with a notice of cancellation of the contract for
deed, alleging that the intestate transfer of Rory’s interest breached the contract for deed.
Kuhn initiated a lawsuit seeking temporary and permanent injunctions to prevent
the cancellation of the contract. The complaint asserted that the intestate transfer of Rory’s
interest did not breach the contract for deed. An affidavit by Kuhn was attached to Kuhn’s
motion for a temporary injunction. The affidavit was accompanied by three exhibits: the

Minnesota Practice § 6.2 (2022-23 ed. 2022). “The [purchaser] has equitable title, and the
[seller] retains the legal title as security.” Butler, 552 N.W.2d at 229; see also Wertheim,
supra, § 6.5.

5 A purchaser’s equitable interest acquired in a contract for deed is generally transferrable.
See, e.g., Midtaune v. Burns, 434 N.W.2d 474, 477 (Minn. App. 1989) (discussing
assignment of purchaser’s interest), rev. denied (Minn. Mar. 29, 1989); Gilbert Builders,
Inc. v. Cmty. Bank of DePere, 407 N.W.2d 706, 708 (Minn. App. 1987) (holding that the
purchaser’s interest is mortgageable), rev. denied (Minn. Aug. 19, 1987). The parties do
not dispute that a purchaser’s interest can devolve to an heir upon death, and although we
are unaware of Minnesota cas es addressing this issue, caselaw from other states indicates
that a purchaser’s interest in a contract for deed passes to the purchaser’s heirs. See, e.g.,
Graves v. Am. Acceptance Mortg. Corp., 677 N.W.2d 829, 833 (Mich. 2004) (stating that
purchaser’s equitable interest “is a present interest in realty that may be sold, devised, or
encumbered”); In re Briebach’s Est., 318 P.2d 223, 225 (Mont. 1957) (“[U]pon the death
of the [purchaser], his interest in the land by virtue of the contract is deemed realty, and
goes to his heirs at law and not to his legal representatives.” (quotation omitted)); Love v.
Butler, 30 So. 735, 737 (Ala. 1901) (“The [purchaser] is the owner of the land, and on his
death it descends to his heirs, or to those to whom he may have devised it by will.”).
6 Under Minnesota law, when a person dies without a will and, in some circumstances even
when that person has a will, the estate passes by intestate succession. Minn. Stat. §§ 524.2-
101, .2-103, .3-101 (2022). Here, Rory’s estate automatically passed to B.D., his only
child, by intestate succession.
4
contract for deed, an amendment to the contract for deed, and the notice of cancellation of
the contract for deed. All three documents were referenced in the complaint.
The contract for deed sets forth various rights and responsibilities for Rory (referred
to in the contract for deed as “Purchaser”) and respondents (referred to in the contract for
deed as “Seller”). For example, it provides a schedule for “Purchaser” to pay the purchase
price, gives “Purchaser” the right to prepay subject to certain terms, and states that
“Purchaser shall” record the contract for deed, pay certain taxes, obtain certain insurance,
and indemnify respondents from certain injuries. Central to the parties’ dispute here, the
contract for deed contains the following anti-transfer clause:
Transfer Restrictions. Purchaser may not sell, assign, or
otherwise transfer Purchaser’s interest in this Contract, or the
Property, or any part thereof, or if Purchaser is an entity,[7] the
controlling interest in Purchaser may not be transferred without
the written consent of Seller, which consent . . . shall be
granted or withheld in the sole discretion of Seller.

The contract for deed also has a provision for defaults and remedies, which provides in
relevant part:
The time of performance by Purchaser of the terms of this
Contract is an essential part of this Contract. If Purchaser fails
to timely perform any term of this Contract, Seller may, at
Seller’s option, elect to declare this Contract cancelled and
terminated by notice to Purchaser in accordance with
applicable law or elect any other remedy available at law or in
equity. If Seller elects to terminate this Contract, all right, title,
and interest acquired under this Contract by Purchaser shall
then cease and terminate, and all improvements made upon the

7 The parties agree that the language permitting transfers with the seller’s consent applies
to transfers made by an individual purchaser and those made by an entity. Given the
arguments presented, we assume that this clause unambiguously permits an individual
purchaser to make a transfer with the seller’s consent.
5
Property and all payments made by Purchaser pursuant to this
Contract (including escrow payments, if any) shall belong to
Seller as liquidated damages for breach of this Contract . . . .
After service of notice of default and failure to cure such
default within the period allowed by law, Purchaser shall, upon
demand, surrender possession of the Property to Seller . . . .

Finally, the contract for deed provides that “[t]he terms of this Contract shall run with the
land and bind the parties hereto and the successors in interest.”
The district court held a hearing on Kuhn’s motion for a temporary injunction on
June 21, 2022. The district court denied Kuhn’s motion for temporary injunction at the
hearing, reasoning that Kuhn was unlikely to succeed on the merits of his claim. See
Dahlberg Bros. v. Ford Motor Co., 137 N.W.2d 314, 321 (1965) (holding that likelihood
of success on the merits is one of five factors relevant to issuance of a temporary
injunction). The district court also sua sponte dismissed the complaint at the temporary
injunction hearing.
8 The district court reasoned that the intestate transfer of Rory’s interest
in the farm to B.D. materially breached the anti-transfer clause, applying this court’s
nonprecedential decision in Woodard. The district court issued a written order on June 27,
2022, further explaining its reaso ning for dismissing Kuhn’s complaint. The order noted
that it can convert a motion for judgment on the pleadings to a motion for summary
judgment and stated that, “[a]lthough Defendants did not file a Rule 12 or 56 motion, the

8 Although Kuhn criticizes the sua sponte dismissal of the complaint at this stage, he does
not specifically assign error to this process. For this reason, and given our decision, we
need not address whether the district court erred in sua sponte converting respondents’
opposition to a temporary injunction into a summary judgment motion.
6
relevant facts are not disputed, and this Court has concluded the Woodard decision bars
any injunctive or equitable remedy for Plaintiffs.”
Kuhn filed a motion for a new trial, asserting that the district court committed legal
error by relying on Woodard. The district court denied Kuhn’s motion on August 26, 2022.
The district court state d that “no trial has been held in this matter” and that “[t]he Court
granted summary judgment to Defendants following the temporary injunction hearing as
there were no material facts in dispute and they were entitled to judgment as a matter of
law as to either a temporary or permanent injunction.” The district court also reaffirmed
its decision that the intestate transfer of Rory’s property interest breached the anti-transfer
clause. Kuhn appeals.
ISSUE
Did the intestate transfer of Rory’s equitable interest in the farm breach the anti-
transfer clause in the contract for deed?

ANALYSIS
Kuhn argues that because Rory did not take any action to “sell, assign, or otherwise
transfer” his interest in the farm, the district court erred when it relied on Woodard to
dismiss the complaint. We agree with Kuhn.9
If the purchaser of a contract for deed materially breaches the contract, the seller
may cancel the contract. Minn. Stat. § 559.21, subd. 2a (2022); Sitek v. Striker, 764

9 Because we agree with Kuhn’s primary argument, we need not address Kuhn’s alternative
arguments that the district court relied on parol evidence, the breach was immaterial, and
the anti-transfer clause was void.
7
N.W.2d 585, 592-93 (Minn. App. 2009), rev. denied (Minn. July 22, 2009). Upon notice,
the contract will terminate unless the purchaser cures the asserted breach and meets several
other statutory requirements. Minn. Stat. § 559.21, subd. 2a; Butler , 552 N.W.2d at 230.
Minnesota Statutes section 559.211, subdivision 1 (2022), allows a purchaser to seek “an
order temporarily restraining or enjoining further proceedings.” In that action, the
purchaser may “plead affirmatively any matter that would constitute a defense to an action
to terminate the contract.” Minn. Stat. § 559.211; see also Sitek, 764 N.W.2d at 590.
Interpretation of an unambiguous contract presents a question of law that we review
de novo. 10 Valspar Refinish, Inc. v. Gaylord ’s, Inc., 764 N.W.2d 359, 364-65 (Minn.
2009); Roemhildt v. Kristall Dev., Inc. , 798 N.W.2d 371, 373 (Minn. App. 2011), rev.
denied (Minn. July 19, 2011); see also, e.g., Sipe v. STS Mfg., Inc., 834 N.W.2d 683, 686
(Minn. 2013) (applying a de novo standard of review to the decision to grant a motion to
dismiss for failure to state a claim); Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623,
628 (Minn. 2017) (applying a de novo standard of review to the decision to grant a
summary judgment motion).
Given the district court’s reasoning, we begin the analysis with a summary of
Woodard. In that case, this court considered whether a purchaser’s execution of a transfer
on death deed (TODD) violated an anti-transfer clause in a contract for deed that conveyed
equitable title in a family farm. Woodard, 2020 WL 996746 at *1. The anti-transfer clause
in Woodard was nearly identical to the one in this case and stated that “[t]he purchasers

10 Neither party argues that the anti-transfer clause in the contract for deed is ambiguous.
8
shall not sell, assign or otherwise transfer their interest without written consent of the
sellers.” Id. Our decision in that case was based on the statutory provisions defining the
nature of a TODD. Id. at *2 (quoting Minn. Stat. § 507.071, subd. 2 (2018)). We concluded
that the purchaser breached the anti-transfer clause when he signed the TODD. Id.
With that decision in mind, we turn to the anti -transfer clause and the nature of the
intestate transfer in this case. We conclude that the intestate transfer does not fall within
the prohibitions of the anti-transfer clause for two reasons. First, the intestate transfer here
resulted from Rory’s inaction. On its face, the anti-transfer clause is written in active
voice
11 and prohibits Rory from transferring his interest by taking any one of three
specified actions: he may not “sell, assign, or otherwise transfer” his equitable interest. 12
Unlike the actions of the purchaser in Woodard who signed a written document to assign
and subsequently transferred his equitable interest, Rory took no action to assign or

11 When appellate courts interpret law or contracts, the use of active voice instead of passive
voice is an important distinction that we do not overlook. See, e.g., Johnson v. Paynesville
Farmers Union Co-op. Oil Co., 817 N.W.2d 693, 716 (Minn. 2012) (Page, J., dissenting)
(observing that for purposes of statutory interpretation, the “use of the passive voice
generally indicates the focus of the language is ‘whether something happened—not how or
why it happened.’” (quoting Dean v. United States, 556 U.S. 568, 572 (2009)).

12 When interpreting a statute or contract that includes a list of specific terms followed by
a general term, the meaning of the general term is confined by the characteristics that it
shares with the other terms in the list. See, e.g., State v. Taylor, 594 N.W.2d 533, 536
(Minn. App. 1999) (“Pursuant to the doctrine of noscitur a sociis, a word should be
construed with reference to the words around it.”); Wayne v. MasterShield, Inc., 597
N.W.2d 917, 920 (Minn. App. 1999) (interpreting the meaning of an unambiguous statute
on the basis that “a phrase capable of several meanings is defined by the words with which
the phrase is associated”), rev. denied (Minn. Oct. 21, 1999).
9
otherwise transfer his interest. 13 Indeed, it was Rory’s lack of action that resulted in the
devolution of the estate by operation of law. See Minn. Stat. 524.3-101 (stating that
“[u]pon death, a person’s real and personal property devolves” (emphasis added)); Laymon
v. Minn. Premier Props., LLC, 913 N.W.2d 449, 454 (Minn. 2018) (noting that property
devolves “upon death of the testator, which is to say, immediately” (quotation omitted));
In re Beachside I Homeowners Ass’n, 802 N.W.2d 771, 774 (Minn. App. 2011)
(“Minnesota has long recognized the principle that title to a decedent’s estate vests
automatically”). The intestate transfer of Rory’s estate as a result of Rory’s inaction cannot
violate an anti-transfer clause that prohibits Rory from taking one of the specified actions.
Second, the anti-transfer clause has a specified actor or subject (the purchaser) and
does not prohibit a transfer caused by a third party or the operation of law. 14 There are

13 We also note that the TODD statute distinguishes between two actions, each which
occurs on different dates: (1) the assignment of an interest, which occurs on the date the
TODD is signed; and (2) the effective date of the transfer of that interest, which occurs
upon death of the grantor. Minn. Stat. § 507.071, subd. 2 (defining a TODD as “[a] deed
that conveys or assigns an interest in real property,” “expressly states that the deed is only
effective on the death of . . . the grantor owners,” and that has the effect of “transfer[ing]
the interest to the grantee beneficiary upon the death of the grantor”). Therefore, anti-
transfer clauses in contracts for deed (like the ones at issue in Woodard and in the instant
case) that do not allow a purchaser to “assign” equitable title would prohibit the purchaser
from assigning equitable title through a TODD.

14 Kuhn directs our attention to additional language in the contract for deed, which states
that “[t]he terms of this Contract shall run with the land and bind the parties hereto and the
successors in interest.” Kuhn argues that by referring to both parties’ successors in interest,
this additional language undermines respondents’ interpretation of the anti-transfer clause.
We do not agree with Kuhn that this clause necessarily nullifies the anti-transfer clause
because the anti-transfer clause allows certain transfers with the “written consent of Seller.”
Thus, both parties to the contract may have successors in interest. The additional language
cited by Kuhn does, at least arguably, indicate that the anti-transfer clause may continue to
bind B.D. We do not address this issue, however, as it falls outside of the scope of the
10
various situations in which a property interest is transferred by someone other than its
owner, without the direct action of the owner . For instance, property may be transferred
by court order when a marriage is dissolved, during a judicial foreclosure, or when a
judgment is executed in favor of a third-party creditor. 15 We do not decide whether any
of these kinds of transfers would be restricted by the anti-transfer clause in this case.
Instead, we make this observation to emphasize that the use of active voice in the anti-
transfer clause, coupled with the identification of a spec ified actor, has potential
applications and meaning apart from the possibility of intestate transfer.
In sum, the parties bargained for this contractual language, and the anti-transfer
clause prohibits a specified actor from taking listed actions. Rory did not “sell, assign, or
otherwise transfer” his interest. The intestate transfer of Rory’s estate—including his

complaint and the appeal. Nothing in this opinion is intended to address whether B.D. or
Kuhn is prohibited from selling, assigning, or otherwise transferring the equitable interest
that automatically passed to B.D. upon Rory’s death.

15 In the context of corporate stock sales, we note that the supreme court has held that anti-
transfer clauses like the one at issue here do not preclude involuntary transfers or transfers
by operation of law: “[r]estrictions on the sale of corporate stock apply only to voluntary
sales, and not to transfers by operation of law, in the absence of a specific provision to that
effect.” Castonguay v. Castonguay, 306 N.W.2d 143, 144- 45 (Minn. 1981) (holding that
a provision that “[n]o holder of shares of stock in this corporation shall sell, assign, transfer,
pledge, hypothecate or in any other manner dispose of” the shares without notice did not
prevent the transfer of shares by court order in a dissolution case (quotation omitted)). The
supreme court has also held that a similar provision in a mortgage contract did not apply
to a transfer by a third -party. Gate Co. v. Midwest Fed. Sav. & Loan Ass’n, 324 N.W.2d
202, 204-06 (Minn. 1982) (holding that a due -on-sale clause in a mortgage that required
seller’s consent when the property was “sold or transferred by Borrower” did not apply to
a transfer of an interest by a third party “which clearly was not a borrower”). We see no
reason to treat those restrictions differently from the clause at issue here.
11
equitable interest in the farm—as a result of Rory’s inaction does not violate the anti-
transfer clause.
DECISION
Woodard’s persuasive value is limited to the facts of that case and is distinguishable
from the intestate transfer that occurred in this case. 16 We therefore reverse the district
court’s decision to dismiss Kuhn’s complaint based on Woodard, and we conclude that the
intestate transfer did not violate the unambiguous anti-transfer clause. We remand the
matter to the district court. Although we are not aware of any other grounds respondents
would have to cancel the contract for deed or object to Kuhn’s requested permanent
injunction, nothing in this opinion is intended to prevent respondents or Rory’s successor
in interest from exercising their rights under the contract.
Reversed and remanded.

16 We also note that in Woodard, this court explicitly declined to address whether the
transfer of property through a will executed by the purchaser would violate the anti-transfer
clause. 2020 WL 996746, at *2. As in Woodard, we need not decide whether Rory would
have violated the anti- transfer clause by executing a will that devised his interest in the
farm to B.D.

D-1
BRATVOLD, Judge (dissenting)
I respectfully dissent. This appeal raises a close question that is one of first
impression: whether transferring property by intestate succession breaches a
consent-to-transfer clause in a contract for deed. The answer lies at the intersection of
contract law and real-property rights. Minnesota courts generally have enforced
consent-to-transfer clauses as reasonable restrictions on the alienation of real property. 1
Like the district court, I conclude that the parties’ contract for deed unambiguously
required the purchaser to obtain the seller’s consent before he could “sell, assign or
otherwise transfer” his interest. Because Rory B. Dunn (Rory) transferred the farm to his
son by intestate succession without the consent of respondents Richard G. and Paulette A.
Dunn (the Dunns), he breached the contract for deed. Because I also conclude that this
breach was material, I would affirm the district court’s decision.

1 The Minnesota Supreme Court has stated that “consent clauses in contracts for deed are
valid and enforceable and can defeat the right of third parties who deal with the contract
vendee.” Bank Midwest, Minn., Iowa, N.A. v. Lipetzky, 674 N.W.2d 176, 179 & n.5, 181
(Minn. 2004) (holding purchaser’s grant of mortgage breached the consent-to-transfer
clause in a contract for deed); see also Larson v. Johnson, 221 N.W. 871, 872-73 (Minn.
1928) (rejecting argument that consent-to-transfer clause unlawfully suspended “the power
of alienation” and holding purchaser’s assignment of mortgage breached the
consent-to-transfer clause in a contract for deed). Other cases enforcing consent-to-transfer
clauses include Minn. Cent. R.R. v. MCI Telecomms. Corp., 595 N.W.2d 533, 538 (Minn.
App. 1999) (holding purchaser’s sale of easement breached the consent-to-transfer clause
in an easement agreement), rev. denied (Minn. Sept. 14, 1999), and Karim v. Werner,
333 N.W.2d 877, 878- 79 (Minn. App. 1983) (holding purchaser’s sale of commercial
property breached the consent-to-transfer clause in a contract for deed).

D-2
I. Transferring Rory’s interest in the farm by intestate succession breached the
consent-to-transfer clause.

“The primary goal of contract interpretation is to determine and enforce the intent
of the parties. ” Travertine Corp. v. Lexington -Silverwood, 683 N.W.2d 267, 271 (Minn.
2004). Interpretation of unambiguous contract language is a question of law, and “[w]here
there is a written instrument, intent of the parties is determined from the plain language of
the instrument itself.” Id. “[W]hen a contractual provision is clear and unambiguous, courts
should not rewrite, modify, or limit its effect by a strained construction.” Id. Appellate
courts “read contract terms in the context of the entire contract and will not construe the
terms so as to lead to a harsh and absurd result.” Brookfield Trade Ctr., Inc. v. County of
Ramsey, 584 N.W.2d 390, 394 (Minn. 1998); see also Gill v. Gill, 919 N.W.2d 297, 312
(Minn. 2018).
In the contract for deed signed by Rory and the Dunns, the parties agreed that the
purchaser (Rory) must obtain the seller’s (the Dunns’) written consent to transfer the
purchaser’s interest:
Transfer Restrictions. Purchaser may not sell, assign,
or otherwise transfer Purchaser’s interest in this Contract, or
the Property, or any part thereof, or if Purchaser is an entity,
the controlling interest in Purchaser may not be transferred
without the written consent of Seller, which consent . . . shall
be granted or withheld in the sole discretion of Seller.

(Emphasis added.)
A consent-to-transfer clause is not unusual; indeed, here it appeared in an addendum
to a “check -the-box” form contract for deed. Minnesota generally recognizes that
consent-to-transfer clauses are important to the seller, who “is interested in having the

D-3
property which has been [e]ntrusted to the possession of another properly cared for” and
thus “should have a voice in the selection of a proper caretaker.” Larson, 221 N.W. at 873;
see generally Travertine, 683 N.W.2d at 271 (“The primary purpose of clauses prohibiting
the assignment of contract rights is to protect the contracting party from dealing with
parties he has not chosen to do business with.”).
To determine whether transferring Rory’s interest to his son breached the
consent-to-transfer clause, I first consider the meaning of “otherwise transfer.” Courts may
look to dictionaries to determine the plain meaning of a contract term. Laymon v. Minn.
Premier Props., LLC, 913 N.W.2d 449, 453 (Minn. 2018). In Bank Midwest, for example,
the supreme court applied the definition of “transfer” as a verb from Black’s Law
Dictionary: “[t]o convey or remove from one place or one person to another; to pass or
hand over from one to another, esp. to change over the possession or control of.”
674 N.W.2d at 180 (quoting Black’s Law Dictionary 1504 (7th ed. 1999)). The bank argued
that the purchaser’s grant of a mortgage to the bank did not violate a consent-to-transfer
clause because the mortgage did not produce an immediate change of possession. Id. at
181. The supreme court disagreed, reasoning that granting a mortgage conferred to the
bank “the power to obtain possession, albeit a conditional power that requires default and
foreclosure.” Id. The supreme court concluded that the grant of a mortgage was a transfer
that violated the consent-to-transfer clause, and thus reinstated summary judgment for the
seller. Id.
Here, the consent-to -transfer clause provides that the purchaser may not “sell,
assign, or otherwise transfer” the purchaser’s interest in the farm without the seller’s

D-4
consent. (Emphasis added.) “Otherwise,” when used as an adverb, means “in a different
way; in another manner” or “by other causes or means.” Black’s Law Dictionary 1328
(11th ed. 2019). Thus, applying the common meaning of “otherwise transfer,” I conclude
that the consent-to-transfer clause requires the seller’s consent for the purchaser to sell,
assign, or “in a different way” “pass or hand over from one to another” the purchaser’s
interest in the farm.
Next, I consider whether transferring Rory’s interest to his son by intestate
succession “otherwise” transferred the purchaser’s interest in the farm and required the
seller’s consent.
Passing real property by will or intestate succession is a devolution or transfer of
property rights to another by operation of law upon the death of the testator or intestate
person. “Upon death, a person’s real and personal property devolves to the persons to
whom it is devised by last will . . . or in the absence of testamentary disposition, to the
decedent’s heirs.” Minn. Stat. § 524.3-101 (2022). The supreme court, interpreting section
524.3-101, has explained: “Devolve is a legal term that means to transfer (rights, duties,
powers, etc.) to another and, when concerning money or land, means to pass by
transmission or succession.” Laymon, 913 N.W.2d at 453 (quotation omitted). When an
interest in real property “devolves” by testamentary disposition or to a decedent’s heirs
through intestate succession, it transfers “upon death . . . which is to say, immediately.” Id.
at 454 (quotation omitted).
Thus, Rory’s interest in the farm transferred to his son by intestate succession upon
Rory’s death. Rory did not sell or assign his interest in the farm to his son. Still, based on

D-5
the meaning of “otherwise transfer” in the consent-to-transfer clause of the contract for
deed, I conclude that Rory “otherwise transfer[red]” his interest in the farm by intestate
succession. As a result, transferring the farm by intestate succession required the Dunns’
consent.
I find our nonprecedential decision in Woodard v. Krumrie persuasive.
No. A19-0800, 2020 WL 996746 (Minn. App. Mar. 2, 2020), rev. denied (Minn. May 19,
2020). In Woodard, this court held that a consent-to-transfer clause was violated when the
purchaser’s interest in a family farm passed to his child through a transfer-on-death deed
(TODD). 2020 WL 996746, at *2. We reasoned that a TODD “transfers the interest to the
grantee beneficiary upon the death of the grantor owner.” Id. (quotation omitted). Because
the purchaser in Woodard did not obtain the seller’s consent, we affirmed summary
judgment for the seller after also determining that the breach was material. Id. at *4, *6.
Woodard did not interpret the consent-to-transfer clause, but its conclusion persuades me
that the clause applies here. Transferring the family farm in Woodard occurred without the
seller’s consent and at the same time as transferring the family farm here: upon the death
of the purchaser.
I do not agree with the majority’s reasons for distinguishing Woodard. First,
differentiating between Rory’s “action” and “inaction” ignores that these parties agreed
that the seller’s consent was needed to transfer the farm. The majority correctly points out
that the consent-to-transfer clause uses active voice. And the clause mentions two specific
acts—Rory seeking consent to transfer and a subsequent transfer. Further, the majority
emphasizes that transfer by intestate succession is unlike transfer by a TODD because, for

D-6
example, the purchaser in Woodard took action when he signed a TODD.2 In contrast, Rory
signed nothing showing his intent to pass his equitable interest to his son.
Still, the use of active voice in the consent-to-transfer clause does not alter its plain
meaning, which is to require the seller’s consent for a valid transfer of the purchaser’s
interest in the farm. 3 We “read contract terms in the context of the entire contract .”
Brookfield Trade Ctr. , 584 N.W.2d at 394; cf. Avis Budget Car Rental LLC v. C ounty of
Hennepin, 937 N.W.2d 446, 452 (Minn. 2020) (concluding for purposes of statutory
interpretation that “in the context of surrounding sections,” use of passive voice did not
affect a statute’s meaning (quotation omitted)). Another provision in the contract for deed
also shows the importance the parties attached to the Dunns’ consent: The parties agreed

2 Woodard’s reasoning does not hinge on viewing a TODD as an assignment. Woodard
refers to a TODD as an attempted assignment, but also describes a TODD as “a transfer of
a property interest” and states that the purchaser breached the consent-to-transfer clause
because he “executed the TODD without the [seller’s] consent.” Id. at *2. I read Woodard
to say that the purchaser breached the contract because he executed the TODD without the
seller’s consent. So, too, Rory’s interest in the farm passed by intestate succession to his
son without the Dunns’ consent.

3 The majority notes that “in the absence of a specific provision to that effect,” restrictions
on the sale of corporate stock do not preclude involuntary transfers by operation of law and
apply only to voluntary sales. Castonguay v. Castonguay, 306 N.W.2d 143, 144-45 (Minn.
1981) (quotation omitted). Castonguay, however, dealt with personal property. Although
courts are averse “to construe laws as prohibiting the right of any one to alienate what is
his,” whether it be personal or real property, judicial tolerance of alienation restrictions is
distinct for each property type. Townsend v. Fenton, 16 N.W. 421, 421 (Minn. 1883) .
Indeed, one cannot absolutely suspend the power to alienate real property. In re O’Leary’s
Est., 161 N.W. 392, 393-94 (Minn. 1917). Yet courts uphold spendthrift prohibitions of
“any other transfer, voluntary or involuntary,” from a beneficiary’s interest in trust
principal or interest. In re Tr. Created Under Agreement, 361 N.W.2d 43, 45 (Minn. 1985).
I see a significant distinction between the supreme court’s tolerance of alienation
restrictions for real and personal property, so I do not find Castonguay persuasive in this
case involving real property.

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that improvements to the farm costing more than $75,000 require the Dunns’ consent. The
contract for deed therefore requires the seller’s consent both for transferring the purchaser’s
interest in the farm and for making any improvements costing more than $75,000. Reading
the contract as a whole, I conclude that the contract’s focus is on requiring the seller’s
consent for significant changes—transfer and improvements—and not on whether the
transfer is because the purchaser failed to act.
Also, if we distinguish between transfers when the purchaser “acts” or “fails to act,”
we are adding words to the consent-to-transfer clause. Generally, courts will not add words
to a contract. Savela v. City of Duluth, 806 N.W.2d 793, 797 (Minn. 2011) (refusing to
“add words” to an unambiguous contractual provision). The word “active” or “inactive” is
not found in the contract for deed. And by distinguishing between a purchaser’s “action”
and “inaction” before a transfer, we are suggesting that transferring an equitable interest in
a contract for deed by a legal instrument —such as a TODD or a will—violates a
consent-to-transfer clause, while transferring the same equitable interest by intestate
succession does not violate the same consent-to-transfer clause. That seems to me to be an
odd suggestion that implicitly encourages intestate succession to circumvent the
consent-to-transfer clause.
Second, differentiating between vari ous actors involved in transferring property
raises more questions than it answers. The majority reads the consent-to-transfer clause as
prohibiting Rory from transferring the farm and not prohibiting transfers by a third party
or by operation of law. In my view, this ignores that “otherwise transfer” means transfer
“in a different way,” which encompasses both voluntary transfers, like the one in Woodard,

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and involuntary transfers, like judicial foreclosure for nonpayment of property taxes.4 Also,
transfer by a third party or by operation of law does not necessarily mean the purchaser has
not acted —a property owner may know about his tax delinquency, for example, and
actively choose not to pay.
I also question whether intestate succession is properly characterized as inaction on
Rory’s part. I note the lack of Minnesota authority using any term like “action” or
“inaction” to describe intestate succession. A Minnesota statute says both testate and
intestate succession occurs automatically upon death by operation of law. Minn. Stat.
§ 524.3-101. Neither the automatic nature of succession, nor the passing on death,
addresses whether intestate succession results from inaction.
More to the point, intestate succession may be a planned transfer. The law has long
recognized that joint bank accounts with a right of survivorship are a “poor person’s will.”

4 Here, it is significant that the supreme court in Bank Midwest discussed and relied on the
definition of “transfer” as a noun, which means:

The sale and every other method, direct or indirect, of
disposing of or parting with property or with an interest therein,
or with the possession thereof, or of fixing a lien upon property
or upon an interest therein, absolutely or conditionally,
voluntarily or involuntarily, by or without judicial
proceedings, as a conveyance, sale, payment, pledge,
mortgage, lien, encumbrance, gift, security or otherwise . . . .

674 N.W.2d at 180 (emphasis added) (quoting Black’s Law Dictionary 1497 (6th ed.
1990)). This definition provides added support for my view that a transfer encompasses
“every other method” of “parting with property”—direct or indirect, voluntary or
involuntary, by or without judicial proceedings. Based on the common meaning of the word
“transfer,” I reject the view that the consent -to-transfer clause does not apply to transfers
that are inactive, automatic, or by operation of law.

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Enright v. Lehmann, 735 N.W.2d 326, 332 (Minn. 2007) (citing Note, The “Poor Man’s
Will” Gains Respectability: Using the Minnesota Multi-Party Accounts Act, 1 Wm.
Mitchell L. Rev. 48, 50 (1974)). The same may be said of intestate succession. And just as
an individual may direct the transfer of a real-property interest upon their death by devising
the interest or executing a TODD, an individual might also choose to take no action and
allow their interest to transfer based on the laws of intestate succession. First Nat’l Bank
of Minneapolis v. Comm’r of Tax’ n, 84 N.W.2d 55, 59 (Minn. 1957) (noting trust
beneficiary had the power to “control succession” of his interest in the trust, and by failing
to do so in a will, “he has by necessary implication indicated that those named” in the trust
“take upon a default in the [beneficiary’s] exercise of the power”).
Because the contract for deed expressly required the seller’s consent for the
purchaser to transfer his interest in the property, and because the contract for deed did not
differentiate between transfers by “action” or “inaction” of the purchaser, I would hold that
transferring Rory’s interest in the farm to his son by intestate succession required the
Dunns’ consent. The parties agree that the Dunns did not give their consent. Thus, I
conclude that transferring the farm to Rory’s son breached the contract for deed.
II. Transferring Rory’s interest in the farm by intestate succession materially
breached the consent-to-transfer clause.

A seller in a contract for deed may cancel the contract after any material breach.
Minn. Stat. § 559.21, subd 2a (2022). A material breach must be “significant enough to
permit the aggrieved party to elect to treat the breach as total (rather than partial), thus
excusing that party from further performance and affording it the right to sue for damages.”

D-10
BOB Acres, LLC v. Schumacher Farms, LLC , 797 N.W.2d 723, 728 (Minn. App. 2011)
(quotation omitted), rev. granted (Minn. June 14, 2011) and appeal dismissed (Minn.
Aug. 12, 2011). In other words, a material breach “goes to the root or essence of the
contract.” Id. (quotation omitted). Whether an act is a material breach of a contract is a fact
question. Sitek v. Striker, 764 N.W.2d 585, 593 (Minn. App. 2009), rev. denied (Minn.
July 22, 2009). When material facts are undisputed, summary judgment may be
appropriate. Dempsey v. Jaroscak, 188 N.W.2d 779, 782 ( Minn. 1971); see Sitek,
764 N.W.2d at 593 (concluding that the breach was material, and summary judgment was
appropriate, when the parties stipulated that the purchaser had not made payments on a
contract for deed for more than three years).
Appellant Jeffrey D. Kuhn’s brief to this court argues that the record could support
a finding that breach of the consent- to-transfer clause was not material. First, Kuhn, the
personal representative of Rory’s estate, contends that the Dunns waited more than eight
months to serve Kuhn with a notice of cancellation, and Rory’s estate was prepared to
continue the required payments under the contract for deed or make a prepayment of the
balance. Even if we assume these facts are undisputed, neither addresses the absence of the
Dunns’ consent to transfer. The supreme court has held that a consent-to-transfer clause
protects the seller’s “voice in the selection of a proper caret aker” for the real property.
Larson, 221 N.W. at 872-73. Although it is true that the contract for deed allows for
prepayment, Rory did not exercise the option to prepay, and there are currently more than
twenty-five years of scheduled payments remaining. Neither prepayment nor assumption

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of the scheduled payments gives the Dunns a “voice” in the selection of the farm’s
caretaker.
Second, Kuhn contends the contract for deed suggests that the essence of the
agreement was the Dunns’ financial interest in the farm, not controlling ownership of the
farm. But Kuhn’s analysis overlooks that the parties voluntarily added the
consent-to-transfer clause—as well as a clause requiring consent for certain improvements
to the farm—by checking boxes in an addendum to the contract for deed. Moreover, the
parties elected to check the box providing that consent “shall be granted or withheld in the
sole discretion of Seller” and did not check the box providing that consent “shall not be
unreasonably withheld or delayed by Seller.” Based on the language of the contract for
deed, I would conclude that the consent-to -transfer clause goes to the essence of the
contract for deed. Because there is no genuine issue of material fact that the Dunns did not
consent to transferring the farm to Rory’s son, I would conclude there was a material breach
of the contract for deed.5

5 Kuhn also argues that, even if the alleged breach were material, he should be allowed to
cure the breach. A contract for deed terminates by a notice of cancellation unless the
purchaser “complies with the conditions in default.” Minn. Stat. § 559.21, subd. 2a(1).
Because transferring Rory’s interest in the farm by intestate succession cannot be undone
without cancelling the contract for deed, I conclude that the breach cannot be cured.

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For these reasons, I respectfully dissent and would affirm the district court’s order
dismissing Kuhn’s claim for an injunction against cancellation of the contract for deed.6

6 Kuhn makes two other arguments that the consent-to-transfer clause is void as against
public policy. I do not address these arguments because Kuhn forfeited them when he failed
to raise them before the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.
1988) (“A reviewing court must generally consider only those issues that the record shows
were presented and considered by the trial court in deciding the matter before it.” (quotation
omitted)).