TILLMAN, Associate Justice.
This is an appeal in the Circuit Court of Palm Beach County, Florida. On January 5th, 1948, John T. Havens, for whose estate the appellee here is now administratrix, was indebted to the Atlantic National Bank of West Palm Beach in the sum of $155,000.00 plus $620.00 interest thereon; and the bank held its collateral for the debt $200,000.00 par value 2 1/2% U.S. Treasury Bonds 1965/70. Mr. Havens instructed the bank to sell the collateral and from the proceeds first pay the note, and second, the balance was to be returned to John T. Havens. The bank followed the instructions and sold the collateral for $202,975.96, which was the sale price of the bonds with the accrued interest less the commission for selling. From this sum the bank deducted the amount owed by Mr. Havens to it, to-wit: $155,620.00, which left the bank indebted to Mr. Havens in the sum of $47,355.96, and the bank issued its cashier's check No. 123969, dated January 5, 1948, payable to the order of J.T. Havens in the amount of $47,355.96. So far as the record shows, nothing is known of what became of the check. Mr. Havens died more than a year later, to-wit: February 2, 1948, and Mrs. Havens, the appellee here, was appointed administratrix of his estate. Both she and C.W. Johnson, who was an auditor for the estate, testified that they had made a thorough search of Mr. Havens' papers, and not only could not find any trace of the check, but could not find any entry affecting the check. Mrs. Havens demanded that the bank pay to her, as administratrix, the amount evidenced by the check, and failing in that, that they stop payment on the outstanding check and re-issue to her a duplicate check.
Both of these things the bank refused to do and in fact, refused to do anything with reference to the check, unless they were given an indemnifying bond to protect them against any possible loss in the event the check should turn up in the hands of a holder in due course.
Mrs. Havens, as administratrix of her husband's estate, then brought a petition for a declaratory decree setting forth the facts. Testimony was taken before the court and Judge Chillingworth entered his final decree on August 1, 1949, and in the final decree, the Judge found as a matter of fact that the situation with reference to the cashier's check was brought about through the fault of John T. Havens and through no fault of the bank, and held the bank had no authority to stop payment on the cashier's check and release itself from liability thereon and that the court could not effectually release the bank from liability on the check to a holder in due course.
The court then held that the Statute of Limitations on the check was a period of five years and that it began to run on the check from the date of its issuance, to-wit: January 5, 1948. The check continued to be an obligation of the bank, negotiable in character. The court then ordered that the bank pay to Mrs. Havens, as administratrix, on the 6th day of January, 1953, without interest, the sum of $47,355.96, and provided further that in the event the administratrix desired to be paid before that time, she could get the money if she enters into an indemnity bond in the penal sum of $55,000,00, which bond should be approved by the court, conditioned to save the bank harmless against all liabilities, loss, damages, expense, reasonable attorney's fees and costs which might be sustained or incurred by the bank by reason of the payment of its outstanding cashier's check. From this decree of the chancellor the bank appealed and the case heretofore set.
We think that the findings of the Circuit Court, together with his solution of the problem, are both eminently correct. The correctness of the Judge's decree will depend largely on his determination that the Statute of Limitations in this case is five years and that it began to run on the date of issue. We think the chancellor below was correct on both of these facts. See Sec. 674.02, F.S.A.; Sec. 674.09, F.S.A.; Sec. 95.11, F.S.A., Subsection 3.
As to when the Statute of Limitations begins to run see 54 C.J.S., Limitation of Actions, § 147, page 81; Brett v. Ming, 1 Fla. 447; Dean v. Iowa-Des Moines National Bank and Trust Company, 227 Iowa 1239, 281 N.W. 714, 290 N.W. 664, 128 A.L.R. 137, and see Patton's Digest of Legal Opinions and the Banking Law, Volume 2, page 1915, Sec. 3061a, Ed. 1926. We do not agree with the contention of the appellee that the drawer of this cashier's check is discharged, either under Section 676.13, F.S.A., or under Section 676.54, F.S.A.
Since the situation was brought about through no fault of the bank, but rather through the fault of the appellee we believe the bank should be protected, but still the protection should not be of such a stringent nature that it would amount to a confiscation of the debt undoubtedly due by the bank to the administratrix of the estate of Mr. Havens. We therefore think that after the five year Statute of Limitations has run the bank should pay the sum of $47,355.96 to the appellee for then there would be no outstanding liability on the part of the bank to any one if none had arisen in the interim. Until it has run, however, there is a possible — maybe a probable — liability which the bank should be required to assume, so that if the administratrix desires the money prior to the running of the Statute of Limitations, it is nothing but right that she should give to the bank an indemnity bond which would protect it.
The decree of the Circuit Court of Palm Beach County is therefore affirmed.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.