The plaintiff, Havard Gene Nave, filed suit against the defendants, Howard DwaineHeinzmann (Dwaine Heinzmann) and Lyndell R. Heinzmann, in the circuit court of MarionCounty, Illinois. After a bench trial, the court entered a judgment order requiring thedefendants to repay the plaintiff $15,000 but denying other relief sought by the plaintiff. Onappeal, the plaintiff raises these issues: (1) whether the trial court erred in denying hisrequest for specific performance and (2) whether the trial court erred in failing to require thedefendants to pay interest on the damages awarded to the plaintiff. We affirm.

The plaintiff filed a four-count complaint against the defendants. The plaintiff allegedthat on or about June 5, 1996, the plaintiff and defendant Dwaine Heinzmann entered intoa written contract regarding the sale of real estate located in Marion County. The plaintiffalleged that at the time he entered into the contract, he delivered a $15,000 check todefendant Lyndell R. Heinzmann (Dwaine's son) and that said amount was drawn from theplaintiff's account on June 7, 1996.

In count I of the complaint, the plaintiff requested specific performance. The plaintiffalleged that he had demanded a deed from the defendants but that the defendants had failedto deliver the deed. The plaintiff alleged that at all times since the execution of the realestate purchase contract, he has been ready, willing, and able to pay the outstanding balanceowed pursuant to the contract. Other counts in the complaint alleged fraud, conspiracy tocommit fraud, and breach of contract.

Attached to the complaint was a copy of a check in the amount of $15,000, dated June5, 1996, made payable to defendant Dwaine Heinzmann. The memo portion of the checkstates "earnest money 60 acres."

Also attached to the complaint was a copy of the purchase contract. The contractidentified defendant Dwaine Heinzmann as "Seller" and the plaintiff as "Buyer" or"Purchaser." The contract stated in part:

"Fifteen Thousand Dollars ($15,000.00) as earnest money to be applied on suchpurchase price when the sale is consummated, and the balance of Ten ThousandDollars ($10,000.00) (subject to pro[]rations of taxes, etc.) shall be paid upon deliveryof deed, which shall occur on or before June 14, 1996, unless otherwise hereinprovided or extended by agreement of all parties."

The contract also provided, "Upon acceptance of this offer, it becomes a binding contract andSeller shall complete said agreement on or before June 14, 1996, if not sooner performed." Paragraph A of the contract provided, "In the event Seller fails to perform upon thisagreement, all earnest money tendered shall be returned in full to Buyer."

Paragraph F stated:

"Should said Purchaser fail to perform this contract promptly on his part, at thetime and in the manner herein specified, the earnest money paid as above shall, at theoption of the Seller, be forfeited by the Purchaser as liquidated damages, and thiscontract shall thereupon become and be null and void, and the Seller shall then havethe right to re[]enter and take possession of the premises aforesaid."

The contract also contained a right to repurchase. Paragraph D provided:

"Seller reserves and Buyer grants unto Seller[] the right to re[]purchase theabove described real estate during a six[-]month period ending December 30, 1996[,]for the sum of Twenty-five Thousand Dollars ($25,000.00) together with interest atthe rate of 10% per annum, plus all costs and taxes. Should Seller exercise the rightto re[]purchase said real estate before the expiration date, Seller *** shall be entitledto 100% of all growing crops. Should Seller *** fail to re[]purchase said real estate,[Buyer] shall pay to [Seller] 1/3 of all existing seed and fertilizer expenses and shallreceive 1/3 of growing crops."

The purchase contract also indicates that it was filed with the Marion County recorderof deeds on June 19, 1998.

The defendants filed an answer admitting that on or about June 5, 1996, the plaintiffand defendant Dwaine Heinzmann had entered into a written contract concerning the sale ofcertain real estate. The defendants also admitted that the plaintiff had delivered a $15,000check to defendant Lyndell R. Heinzmann towards the purchase price of $25,000. Thedefendants denied the remaining allegations in the complaint but raised no affirmativedefenses.

On November 9, 2001, the court conducted a bench trial. The plaintiff testified thaton June 5, 1996, he signed an agreement to purchase approximately 60 acres of rough, openfarmland from the defendants. The plaintiff knew the defendants and had previous propertydealings with them over the prior three or four years. The plaintiff was familiar with theproperty and had purchased the property from defendant Lyndell R. Heinzmann on aprevious occasion and had resold the property to the defendants prior to entering into thiscontract. The plaintiff stated that it was his intention that the $15,000 payment function asa down payment and not just earnest money. The plaintiff testified that he had more than$35,000 sitting in a credit union account and was ready and willing to make the finalpayment of $10,000 on the date assigned for the closing.

According to the plaintiff, at the time the contract was entered into, the defendantshad already sold 20 acres of the land to Irvin Buchholz. The plaintiff testified that afterentering into the contract, but prior to the date set for the closing, defendant Lyndell R.Heinzmann stated that he would get the title to the property straightened out. Because theplaintiff knew that the defendants did not have the ability to deliver clear title, he did not tryto contact them for the next two to three weeks. The plaintiff testified that it was hisunderstanding that the defendants would offer a deed to the entire property once it wascleared, but they never contacted him to say they had a deed ready. The plaintiff testifiedthat for the first year or two, he attempted to contact the defendants on numerous occasions. The plaintiff telephoned the homes of both the defendants several times and went to thedefendants' attorney's office at least three or four times. On two or three occasions theplaintiff was able to talk to Dwaine. The plaintiff stated that Dwaine said he would call theplaintiff back, but he never did. The plaintiff stated that he called Dwaine again, but Dwainetold him to talk to Lyndell. The plaintiff went by Lyndell's home approximately four to sixtimes, and although Lyndell was never home, the plaintiff left word with Lyndell's wife thathe was there to try to close on the contract. The plaintiff determined that the defendantswere hiding from him. He then recorded the contract at the Marion County recorder of deedsoffice in order to inform anyone who might attempt to purchase any of the property. OnMay 3, 2000, the plaintiff sent Lyndell a letter by certified mail requesting the deed to theproperty.

Mary Heinzmann, Lyndell's wife, stated that the plaintiff came by her residence onlyone time and that was in 1998.

Defendant Dwaine Heinzmann testified that the plaintiff called a couple of times inthe fall of 1997 or 1998 looking for Lyndell regarding the contract. Dwaine testified that hehad signed a deed to complete the transaction but that he did not know whether the deed wasever proffered to the plaintiff.

Defendant Lyndell Heinzmann testified that he negotiated the terms of the contractwith the plaintiff. He stated that he contacted Irvin Buchholz and had him sign a deed toclear title by June 14, 1996. Lyndell testified that in the four years prior to entering into thecontract, he and his father had been doing property sales and assignment of contracts withthe plaintiff in loan-type situations. Most of the closings were performed at the defendants'attorney's office, and all were completed on time. Lyndell testified as follows:

"Q. [Mr. Bauerle:] Now this wasn't the first time that you had sold property oryou or your father had sold property to Mr. Nave with a buy[-]back option, was it?

A. No. I mean actually the way they really consisted of [sic] was a loan[,] andwe used property as collateral and put it back in Gene Nave[,] and then he gave us thecontract back to purchase that property.

Q. And you had always redeemed that property?

A. Yes, I have, or my dad has."

Lyndell testified that a couple days after the contract was signed, he contacted the plaintiffto inform him that there had been a mistake in the deed from Irvin Buchholz in that an "N"should have been an "S." Lyndell told the plaintiff that he had contacted Buchholz and wasin the process of the correcting the deed. Lyndell also told the plaintiff they would be ableto close by the scheduled date of June 14, 1996. Lyndell testified that the plaintiff did notshow up for the closing and did not contact him for more than two years. Lyndell testifiedthat the plaintiff did not contact him about the contract until 1998 and that at no time didLyndell conceal his location.

The trial court entered an order awarding the plaintiff $15,000 in contract damagesbut denying the plaintiff's request for specific performance. The court specifically foundthere had been no intent to defraud by the defendants and that the plaintiff had not made ademand to perform within a reasonable time. The court found that both the buyer and theseller were ready, willing, and able to perform at the time originally set for the closing. Theplaintiff appeals.

According to section 5 of the Mortgage Act (Act):

"Every deed conveying real estate, which shall appear to have been intendedonly as a security in the nature of a mortgage, though it be an absolute conveyancein terms, shall be considered as a mortgage." 765 ILCS 905/5 (West 2002).

The trial court found that the proposed transaction of real estate in the contractappeared to have been intended only as a security in the nature of a mortgage:

"4. The policy of providing for specific performance in real propertytransactions of course relates to the unique nature of real property. Yet here theparties have described a series of such transactions involving real estate that wereused rather as a means for [the] [p]laintiff to lend money to the [d]efendants. Thosecontracts, like the immediate one, include unusual language in paragraph D thatprovides seller with a repurchase right. Further, [the] [p]laintiff did not act as if theproperty was unique. Indeed, approximately two years past [sic] before [the][p]laintiff made a written inquiry and nearly five years before the filing of suit. Although [the] [d]efendants did not plead equitable estoppel or laches, it is alsoapparent that the [d]efendants did reasonably assume that the contract would not beenforced and proceeded to encumber the property."

Thus, the trial court correctly treated the contract for the sale of real estate as a mortgage. See 765 ILCS 905/5 (West 2002). Neither party addresses the Act or the concept ofequitable mortgage, from which this section of the Act arises. The trial court and this courtare not limited to the arguments of the parties. AIDA v. Time Warner Entertainment Co.,L.P., 332 Ill. App. 3d 154, 159, 772 N.E.2d 953, 958 (2002).

The plaintiff contends that he is entitled to specific performance. Where a contractfor the sale of real estate has been entered into without misrepresentation, unfairness, orsuperior advantage, specific performance will be granted to either the buyer or the seller. See O'Shield v. Lakeside Bank, 335 Ill. App. 3d 834, 841, 781 N.E.2d 1114, 1120 (2002);Omni Partners v. Down, 246 Ill. App. 3d 57, 64, 614 N.E.2d 1342, 1347 (1993); ForestPreserve District of Cook County v. Emerson, 341 Ill. 442, 444, 173 N.E. 477, 478 (1930).

Under the Act, however, a contract for the transfer of a deed is to be considered as amortgage and not as a land sale contract if the parties intended the land to function assecurity. 765 ILCS 905/5 (West 2002). In its discussion of the plaintiff's count IV forbreach of contract, the trial court described the $15,000 as "earnest money" and discussedthe obligations of the parties under the contract according to whether a deed had beendelivered. See Cummings v. Beaton & Associates, Inc., 249 Ill. App. 3d 287, 618 N.E.2d292 (1992); Linster v. Regan, 108 Ill. App. 2d 459, 248 N.E.2d 751 (1969). The court'sdiscussion does not negate its finding that the parties intended to create a loan. Thus, thetrial court's decision does not rest on the uniqueness of the property, but on the centrality ofthe property to the agreement. All land is assumed to be unique. 81 C.J.S. SpecificPerformance