This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-650

David P. Thompson, et al.,

Respondents,

vs.

Tracy Lee Stevens,

f/k/a Kearney,

Appellant.

Filed December 10, 1996

Affirmed

Foley, Judge

[*]

St. Louis County District Court

File No. C2-96-600252

Arthur M. Albertson, Suite 320A, 394 Lake Avenue South, Duluth, MN 55802 (for Respondents)

David W. Adams, Legal Aid Service of Northeastern Minnesota, 302 Ordean Building, Duluth, MN 55802 (for Appellant)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Foley, Judge.

U N P U B L I S H E D O P I N I O N

FOLEY, Judge

Appellant argues the trial court lacked jurisdiction to hear respondents' unlawful detainer action because the trial court adjourned the trial for more than six days after the return date on the summons. Alternatively, appellant claims respondents' unlawful detainer action fails because they did not comply with the statutory procedures required to cancel a contract for deed. We affirm.

FACTS

Respondents David P. and Elissa R. Thompson are vendors of a contract for deed. Appellant Tracy Lee Stevens, along with her former husband, Dennis B. Kearney, are the vendees of the contract for deed. Pursuant to the contract for deed, respondents sold 20 acres of land, including a mobile home, to appellant and Kearney. The contract for deed is dated June 6, 1989, and was recorded with the St. Louis County Recorder on June 17, 1989. Appellant and Kearney purchased the property as joint tenants.

On May 21, 1992, appellant's marriage to Kearney was dissolved. The judgment and decree purports to transfer Kearney's interest in the real estate to appellant. However, the legal description of the property contained in the judgment and decree is different from the legal description in the contract for deed. As a result, the judgment and decree was amended on January 2, 1996, to correct this error. The amendment properly sets forth the legal description of the real estate as contained in the contract for deed and requires that Kearney transfer his interest to appellant by quitclaim deed or, if he fails to do so within 30 days of the date of the amendment, that the same can be accomplished by filing of a certified copy of the amended judgment with the county recorder. To date, the certified dissolution judgment and decree or its amendment has not been filed with the county recorder.

On November 4, 1995, respondents served appellant at her home with a cancellation of contract for deed, based on her failure to pay real estate taxes in October 1995. At the time of service, the record title of the subject real estate showed joint ownership of the property in the names of Dennis Kearney and appellant Tracy Kearney. It is undisputed that respondents did not serve Dennis Kearney with a notice of cancellation of contract for deed, nor was he residing with appellant on the date she was served.

On February 14, 1996, an unlawful detainer summons was issued by the St. Louis County District Court. The unlawful detainer summons and complaint were served on appellant on February 20, 1996. The return date was February 27, 1996. Although appellant appeared along with her counsel on that date, respondents failed to make an appearance either personally or through their attorney. Appellant moved to dismiss the action because of respondents' failure to appear. The trial court denied the motion. Appellant also moved to dismiss, arguing the trial court lacked jurisdiction because the return date was six days after service of the summons and complaint, rather than the seven days required under Minn. Stat. § 566.06 (1994). The trial court denied the motion and appellant concedes it was proper for the trial court do so because she in fact was served seven days prior to the return date. The trial court then adjourned the matter to March 5, 1996. The matter was again adjourned to March 8, 1996. It is unclear from the record why the matter was adjourned the second time.

Following respondents' case-in-chief, appellant moved for a dismissal pursuant to Minn. R. Civ. P. 41.02(b), arguing respondents failed to show they were entitled to relief. The trial court denied appellant's motion. On March 21, 1996, the trial court filed its findings of fact, conclusions of law, and judgment in unlawful detainer, finding that appellant failed to vacate the premises after receiving notice to do so and concluded respondents were entitled to restitution of the premises. This appeal followed.

D E C I S I O N

The scope of review in unlawful detainer actions is from a judgment of restitution. Minneapolis Pub. Hous. Auth. v. Greene, 463 N.W.2d 558, 560 (Minn. App. 1990). On appeal from a judgment of restitution entered by the trial court sitting without a jury, a reviewing court will not set aside the trial court's findings of fact except upon a showing that they are clearly erroneous. Travelers Ins. Co. v. Tufte, 435 N.W.2d 824, 827 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989). Conclusions of law made by the trial court are not binding on this court. Id.

Initially, appellant argues that the trial court did not have jurisdiction to hear respondents' unlawful detainer action because it adjourned the trial beyond the six-day period allowed under Minn. Stat. § 566.08 (1994). Minn. Stat. § 566.08 provides, in relevant part, that in an unlawful detainer trial, "[t]he court, in its discretion, may adjourn the trial, but not beyond six days after the return day, unless by consent of the parties." Minn. Stat. § 566.08.

The only case to interpret Minn. Stat. § 566.08 suggests that the trial court has discretion in scheduling an unlawful detainer trial. In Rice Park Properties v. Robins, Kaplan, Miller & Ciresi, 532 N.W.2d 556, 556 (1995), the supreme court ruled that an unlawful detainer action could be stayed beyond the six days allowed under the statute in the interest of judicial administration and economy. Id. at 556. The supreme court, while noting that Minn. Stat. § 566.08 contemplates the prompt disposition of these summary proceedings, held that the district court has considerable discretion in scheduling matters in the interest of judicial administration and economy. Id.

Here, the initial adjournment from February 27, 1996 to March 5, 1996, was within the six-day adjournment period of Minn. Stat. § 566.08. However, when the trial was adjourned to March 8, this resulted in an adjournment of eight days beyond the return day. It is unclear from the record why the trial was adjourned a second time. In light of the supreme court's decision in Rice Park, we conclude that the trial court was not divested of jurisdiction when it adjourned the trial a second time.

Next, appellant argues the trial court had jurisdiction to determine whether respondents complied with the statutory procedures for cancelling a contract for deed. Conversely, respondents argue appellant is not permitted, in an unlawful detainer action, to challenge defects or defenses to the cancellation on which the unlawful detainer action is predicated.

The purpose of the unlawful detainer statute is to provide a summary proceeding to quickly determine the present right to possession of premises. University Community Properties, Inc. v. Norton, 311 Minn. 18, 21-22, 246 N.W.2d 858, 860 (1976). In an action for unlawful detainer under Chapter 566, questions of title or equitable right cannot be litigated. See William Weisman Holding Co. v. Miller, 152 Minn. 330, 332, 188 N.W. 732, 733 (1922) (noting that an unlawful detainer action bars neither "an action involving the title to the property nor an action to maintain or enforce equitable rights therein"). The judgment in an unlawful detainer action merely determines the right to present possession of property. Goldberg v. Fields, 247 Minn. 213, 215, 76 N.W.2d 668, 669 (1956).

Here, respondents' action for unlawful detainer was brought pursuant to Minn. Stat. § 566.03, subd. 1(1) (1994), which provides that an individual is entitled to recover possession of property when any person holds over land after termination of the contract to convey the land. According to appellant, this gives the trial court jurisdiction to consider possession of real estate after an alleged termination of contract to convey real estate, because under the unlawful detainer statute possession can be awarded only if the termination procedure actually terminated the contract for deed.

In Enga v. Felland, 264 Minn. 67, 117 N.W.2d 787 (1962), cited by both parties, the supreme court held that a defective cancellation of a contract for deed on which plaintiff's unlawful detainer was predicated required the trial court to dismiss the unlawful detainer action. The court stated:

Under the allegations of the complaint and defendant's plea, it was incumbent upon plaintiff to establish by competent proof that defendant had no right to possession of the property because the * * * contract for sale, under which such right could exist, was duly terminated.

Id. at 70, 117 N.W.2d 789. The court ruled that the service was required on all purchasers or their assigns and "was a prerequisite to plaintiff's action in unlawful detainer." Id. at 71, 117 N.W.2d at 790.

We conclude, therefore, that because respondents' unlawful detainer action in the present case is predicated on the theory that appellant's right to possession of the subject property was terminated because the contract for deed was canceled, the trial court was required to determine if respondents had complied with the statutory procedures necessary to cancel a contract for deed. Having so concluded, we must now determine if respondents complied with the statutory cancellation procedures.

Pursuant to Minn. Stat. § 559.21, subd. 2a, a vendor of a contract for deed has the right to terminate the contract if a default occurs on the conditions of the contract and a notice to terminate is served "upon the purchaser or the purchaser's personal representatives or assigns." Minn. Stat. § 559.21, subd. 2a (1994). Appellant argues that she is not the personal representative of her former husband or that there has been an assignment of his interest in the property to her. Thus, according to appellant, because respondents failed to serve Dennis Kearney as record vendee with the cancellation notice, the termination of the contract for deed was not perfected and the contract was not terminated.

Respondents argue that appellant was an assignee of Dennis Kearney because all his right, title, and interest in the property passed to her pursuant to the 1992 dissolution decree. Respondents note that appellant testified that as part of her divorce from Kearney she was awarded all right, title, and interest in the property in question. Appellant, however, claims that because the judgment and decree contained an error in the legal description of the property, Kearney's interest in the property was not properly transferred to her.

Although the original judgment and decree contained an error in the description of the property, respondents maintain, and it is not seriously disputed, this was simply a scrivener's error. Respondents argue that when appellant's dissolution decree was amended, it was done simply to correct the error and did not pass any additional title between the parties. Appellant claims that even though the amended judgment and decree awards the homestead to her, it required Kearney to convey his interest by quitclaim deed or by certified copy of the amended judgment and decree if no quitclaim deed is executed within 30 days. According to appellant, neither form of transfer has occurred and, thus, Kearney still has an interest in the property.

The central issue is whether Dennis Kearney's interest in the property passed to appellant by operation of the divorce decree or its amendment. Minn. R. Civ. P. 70 provides that where a judgment involves the conveyance of real property from one party to another, a court may enter a judgment divesting title in one and vesting it in another without requiring a party to convey the property.

As respondents note, a conveyance is not invalid because it is not recorded. It is valid between the parties and only invalid against any subsequent purchaser for value. Minn. Stat. § 507.34 (1994) (unrecorded conveyance of real estate shall be void against any subsequent purchaser in good faith and for valuable consideration of same real estate). The purpose of the Minnesota Recording Statute is to protect persons who buy real estate in reliance upon the record. Miller v. Hennen, 438 N.W.2d 366, 369 (Minn. 1989). It does not vest any post-transfer property interest in the transferor. Thomson v. U.S., 66 F.3d 160, 163 (8th Cir. 1995).

Appellant relies on the decision of Thomson v. U.S., 867 F.Supp. 1420 (D. Minn. 1994), to argue that because the dissolution decree between her and Kearney was not recorded, Kearney's interest in the property was not transferred to her and he still has an interest in the property. However, that decision was reversed by the 8th Circuit in Thomson v. U.S., 66 F.3d 160 (8th Cir. 1995). In reversing the district court, the 8th Circuit held that Minnesota's Recording Statute does not convey title to property. Id. at 163. The court in that case ruled the husband's interest in the homestead, even though unrecorded, was transferred through an unrecorded 1971 divorce decree. Id.

Here, Kearney's interest in the homestead was transferred pursuant to the 1992 dissolution decree. We repeat, although it contained an error in the legal description of the homestead, it is not seriously disputed that this was simply a scrivener's error. As respondents contend, the amendment to the judgment and decree was filed to correct this error and did not pass any additional title between the parties. The fact that neither a quitclaim deed nor the divorce decrees were ever recorded does not render the transfer of Kearney's interest in the property invalid. As a matter of equity, appellant received title and title vested in her at the time of the transfer. Appellant was an assignee of Kearney. As such, we conclude that respondents properly complied with the procedures required to cancel the contract for deed, and the trial court was not required to dismiss respondents' unlawful detainer action.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.