Unlike their military counterparts, many cases neither die nor fade away. They simply go on. Cf. Bros, Inc. v. W. E. Grace Mfg. Co., 5 Cir., 1965, 351 F.2d 208, 209, note 1, cert. denied, 1966, 383 U.S. 936, 86 S. Ct. 1065, 15 L. Ed. 2d 852. So it is here. Now back from a denial of relief on the merits after an earlier reversal for trial, In re Casco Chemical Co., 5 Cir., 1964, 335 F.2d 645, an intervening appeal which effectually reduced the amount of the Government's tax lien, Cash v. Campbell, 5 Cir., 1965, 346 F.2d 670, and a similar action ending adversely to the trustee in Kansas,1 we must decide the merits.

The immediate question is whether the Trustee in Bankruptcy for Casco, through stepping into the shoes of one or more of three actual existing creditors is entitled to set aside distribution of funds due the Bankrupt for goods sold by it. This turns on several subsidiary questions. The first is whether the date of bankruptcy is the date of filing the original petition (October 4, 1961), or the date of the amended petition filed more than four months thereafter on February 26, 1962. If the latter, all washes out with the possible exception of the Government's tax lien. If the earlier date prevails, several questions arise under Texas law and its accounts receivable notification act.2 The first is whether the debt was a covered account receivable, not an excluded debt represented by a negotiable instrument. Second, if covered, the question is whether the failure to record the statutory notice subordinates the unrecording assignee to subsequent liens. We answer all in favor of the Trustee (and Government) and reverse.

For this and the other problems no purpose is served in repeating in detail the facts set out in our prior opinion. 335 F.2d 645, 646-648. The facts before the trial Court and on this appeal are drawn from a stipulated record. On October 5, 1961, the consent order was entered by the District Court which gave rise to the asserted vulnerable transactions. (Notes 11, 12, 335 F.2d 645, 647). The day before, October 4, 1961, an involuntary petition in bankruptcy was filed by one creditor which alleged three acts of bankruptcy in conclusory general terms.3 On February 26, 1962, more than four months after October 5, 1961, an amended petition was filed which in factual detail set forth the interpleaded judgment of October 5, 1961, and the transfer of the sums to the four named claimants.4 This was followed by the formal withdrawal of the defense by Casco, the Bankrupt, and an adjudication by agreement and default.

Reaching the conclusion that a plenary action, not summary proceeding, was required, the District Court earlier held, 335 F.2d 645, Part II, 648-650, that the date of bankruptcy was October 4, 1961, not the date of the amendment, February 26, 1962. In affirming lack of summary jurisdiction, we held that the date of bankruptcy was a matter for determination in the plenary proceedings to be held on remand, 335 F.2d 648. On the remand, the District Court changed its view and held that the date of bankruptcy was February 26, 1962, not the date of the original petition.5

Although the parties and the Court below persist in discussing this problem in terms of the doctrine of relation back, see 2 Collier, Bankruptcy P18.23 and P18.26 (14th ed. 1966), the answer cannot be found there. For it is perfectly obvious whether on general principles or on F.R.Civ.P. 15(c) that allegations concerning events occurring subsequent to the filing of the original petition cannot possibly relate back to the earlier date of filing. But that is a long way from an enforced conclusion that the date of bankruptcy here must have been the date of the amended petition.

It is true, of course, that to initiate an involuntary proceeding, one of the six specified acts of bankruptcy must have occurred within four months prior to the filing of the petition. 3, 11 U.S.C.A. 21. But once a single act of bankruptcy has occurred and the petition has been timely filed with adequate allegations, the power of the Trustee acting for the general estate to reach back and unscramble transactions which are vulnerable to specific sections of the Act, e.g., 67, 70, etc., is not restricted to those transactions occurring within the four months' prefiling period.6 More important, neither is it restricted to those specific transactions set forth in the involuntary petition. In other words, a single act of bankruptcy adequately alleged-no matter how insignificant in terms of dollars or relation to other unalleged suspect transactions-- triggers the whole thing.7

Phrasing the problem as we do, whether the allegations of the involuntary petition are adequate is essentially a question of procedure. Through General Order 378 this brings directly into play the Federal Rules of Civil Procedure 'in so far as they are not inconsistent with the Act or with (the) general orders.' 1 Collier P2.81; Georgia Jewelers, Inc. v. Bulova Watch Co., 5 Cir., 1962, 302 F.2d 362, 366. Except that 18c, 11 U.S.C.A. 41, requires that 'petitions for both voluntary and involuntary bankruptcy shall be verified under oath,' 2 Collier P18.36, nothing in General Order 5 prescribing the content and form of the petition nor in the official forms, see General Order 38, is inconsistent with F.R.Civ.P. 8(a)(2) which requires merely a 'short and plain statement,' the standard under 8(e) being that each '* * * averment of a pleading shall be simple, concise, and direct.' See 2 Collier P18.09(2.2), citing 2 Moore, Federal Practice, P8.12, it should 'be noted that * * * (Rule 8(a)(2)) does not require the pleading of facts as distinguished from conclusions of law.' There is no reason, therefore, why the involuntary petition should not be read with all of the liberality of the usual civil complaint. Conley v. Gibson, 1957, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80; Georgia Jewelers, Inc. v. Bulova Watch Co., supra, 302 F.2d at 366; Barber v. Motor Vessel 'Blue Cat', 5 Cir., 1967, 372 F.2d 626, and see especially cases cited p. 627, n. 1.

Consequently, as Collier points out, despite the sometime use of the term 'jurisdictional facts' as a basis for a particular procedural ruling, deficiencies in pleadings cannot really be 'jurisdictional.' 'There is no basis for assuming that the pleading of an act of bankruptcy, for instance, is any more 'jurisdictional' than the pleading of a petitioning creditor's claim. Nor is it reasonable to suppose, on reading the Act and the General Orders, that a given defect in pleading might be 'jurisdictional' * * * at one stage of the proceedings, and 'non-jurisdictional' at a subsequent stage. Far more preferable is the view that defects in pleadings are not 'jurisdictional'; that whether or not they may be cured depends upon the power of amendment, and that a bankruptcy court has ample jurisdiction to permit amendments.' Serving as a prelude for our further discussion, the text concludes, 'Aside from a few isolated instances, juridical opinion amply supports these views.' 2 Collier P18.05 at p. 20.

But in considering the cases, a distinction must be kept carefully in mind. The fact that the Bankruptcy Court on a timely objection made by the debtor-alleged-bankrupt concludes that the allegation of the act of bankruptcy is not factually detailed enough and that therefore an amendment is required in the interest of good orderly administration, is not the equivalent of a holding that the petition is so totally defective that it is a nullity, the jurisdiction of the court has never been invoked, and the critical times have not begun to run.9

The key is the defensive position taken by the debtor-alleged-bankrupt. This is surely so ever since the 1938 Amendments10 which took away from creditors the right to contest an involuntary petition. This was a deliberate congressional choice to avoid abuses arising from the self-interest of creditors seeking by procedural or other objections to hang on to self-help preferences which were otherwise vulnerable. 2 Collier P18.33. Since the creditor cannot oppose the petition directly, he ought not to have the right to gain the same benefit through a collateral attack.11

Against this background we align ourselves with the First, Second, Third, Seventh and Eighth Circuits in holding that allegations in the wording of the statute, although vulnerable to objection by the debtor-alleged-bankrupt thus setting in train questions of relation back of proffered amendments, are not 'jurisdictionally' defective.

Thus, in Commercial Credit Corp. v. Skutt, 8 Cir., 1965, 341 F.2d 177, where the petition was challenged as 'so fatally defective' on its face as to deprive the Bankruptcy Court of jurisdiction, the Eighth Circuit has this to say. 'This contention overlooks the fact that the Congress, not the pleadings, vests the District Court with the power or right to act in bankruptcy proceedings. In the instant case, the District Court had jurisdiction of the subject matter by virtue of the federal bankruptcy act. * * *. A defective petition in bankruptcy presents no different problem from a defective complaint generally. It does not deprive the court of jurisdiction and is subject to amendment.' 341 F.2d at 180, 181. Similarly, Chief Judge Lumbard, after recognizing that an allegation of an act of bankruptcy in the statutory language 'is improper (since) a reasonably higher degree of particularity is required in an involuntary petition * * *' made plain for the Second Circuit its stand on 'jurisdiction.' 'It is clear that the defects in the petition were not jurisdictional so as to require an outright dismissal and that the District Court had the power to allow amendment of the petition so that defects in pleading could be cured.' South Suburban Safeway Lines, Inc. v. Carcards, Inc., 2 Cir., 1958, 256 F.2d 934. This was echoed by him in Minkoff v. Steven Jrs., Inc., 2 Cir., 1958, 260 F.2d 588, 589-590, where the Court declared that 'merely pleading in broad terms does not amount to failure to state a claim, especially when as here the generality of the pleading arises from the use of the statutory language.' Long before, the Third Circuit had likewise said 'The fact that the acts of bankruptcy were set out merely in the language of the Bankruptcy Act is no ground for dismissing the petition * * *,' Kay v. Federal Rubber Co., 3 Cir., 1930, 46 F.2d 64, 65, as had the First Circuit about the same time in these simple direct words, 'The defect was not jurisdictional.' Harney Shoes, Inc. v. National Fabrics & Finishing Co., 1 Cir., 1937, 44 F.2d 517, 518. More recently the Seventh Circuit, citing Harney sounded the same views. Bixby v. First National Bank, 7 Cir., 1957, 250 F.2d 713. And we agree with the Seventh Circuit's reading of our early case, In re Louisell Lumber Co., 5 Cir., 1913, 209 F. 784, of which the Court had this to say. 'The weakness of defendant's position is emphasized by its reliance upon In re Louisell Lumber Co. * * * Defendant fails to discern that in the Louisell case there was no defective statement of an act of bankruptcy. Instead, there was a complete absence of an allegation of any act of bankruptcy.' Bixby v. First National Bank, supra, 250 F.2d 713 at 718.

Whatever might have been the case had the debtor persisted in denial of bankruptcy,12 when the debtor here withdrew his answer and acquiesced in adjudication by default,13 the date of bankruptcy was fixed as of the date of the original petition. The District Court was in error in finding to the contrary.

Status of the Debt as an Account Receivable

Under the arrangement between Casco and the Bank, Casco would make out its invoice for goods sold to Bunge. Casco then drew a draft on Bunge with the attached invoice covering the goods sold. After first verifying each transaction with Bunge, the Bank then purchased each invoice-draft from Casco for its face amount. For the period of time between payment by the Bank of the funds to Casco until acceptance of the draft and payment by Bunge to the Bank's correspondent, the Bank charged, and Casco paid, eight per cent interest. Each draft showed an endorsement by Casco, the drawer, to the Bank. 335 F.2d 645, 656.

The Bank argues that this assignment, prior in time was prior in right, because Art. 260-1, the Texas non-notification accounts receivable recodring statute (see note 2, supra), expressly excludes from the statutory definition of an 'account receivable' any debt in which the 'right to payment is * * * represented by * * * a negotiable instrument * * *.'14

A faint argument is made that as expressly declared in Inland Refining Co. v. Robinson, 1953, 152 Tex. 289, 291, 256 S.W.2d 843, a draft is not a negotiable instrument until it is accepted. But we place no reliance on this decision which must be regarded as suspect in view of the clear terms of the Texas NIL, 126, Tex.Rev.Civ.Stat.Ann. art. 5940.

From the whole transaction it is perfectly plain that payment was not represented by these drafts. Bunge had received the goods. Casco looked to Bunge for payment for the goods. Receipt of the goods at the prices and quantities specified in the invoices gave rise to an implied, if not an express, obligation to pay for them. But Bunge had no liability on the drafts. Texas NIL 127, Tex.Rev.Civ.Stat.Ann. art. 5940; 9 Tex.Jur.2nd, Bills and Notes 125. Bunge became liable on the drafts only upon acceptance which, being sight drafts, meant on payment. Of course the drawer, Casco, remained liable on its warranty on the drawee's failure to accept (or pay), Texas NIL 61, Tex.Rev.Civ.Stat.Ann. art. 5936, 61. But there is nothing to indicate here that the Bank was content to rely solely upon the secondary liability of the drawer Casco. On the contrary, the security instruments, Boedeker's guaranty given to the Bank, and the Bank's State Court suit against Bunge which ultimately became the federal interpleader's action, 335 F.2d 645 at 647, all combine to demonstrate that the Bank, whether as purchaser or pledgee, or both, treated as the transferred indebtedness Bunge's obligation to pay, Casco's right to receive, the invoice value of the goods.

The assignment to the Bank was therefore subject to Art. 260-1.

Effect of Failure to Record Bank's Assignment

On the assumption that Art. 260-1 applies to this assignment, the Bank next argues that the purpose of the statute is clearly to protect assignees only. The failure to record gives no protection to subsequent attaching or garnishing creditors (i.e., Superintendence) or to statutory lien holders (i.e., the Government).15

Since the Trustee has only to avoid the Bank's assignment as to one actual creditor under 70e, 11 U.S.C.A. 110e,16 this contention is hardly availing. This is so because Excel (335 F.2d 645, 646, note 7, 12) obtained a formal assignment of a part of the same Bunge indebtedness on November 17, 1959, and it was recorded the next day, November 18, in Dallas. Excel's assignment, as a protected assignment, made the Bank's unrecorded assignment voidable.17

We reject altogether as completely unfounded in this stipulated record the District Court's holding that Excel did not take the protected assignment 'in good faith' within the meaning of 6, note 17, supra. Because the Excel assingment was taken in payment of, or to secure, a pre-existing debt, the Court mistakenly reasoned that since this would disqualify one as a bona fide purchaser for value and without notice18 this meant that Excel was not in 'good faith.' 'Good faith' is only one of three requirements necessary in order for one to be a BFP of realty, the question involved in the cases cited note 18, supra, and an antecedent debt can constitute valuable consideration for an assignment, Quinn v. Dupree, 1957, 157 Tex. 441, 303 S.W.2d 769.

The Excel assignment being protected, the Bank's assignment is voidable as to it, and this alone would be sufficient. But in view of the holdings in the Kansas case (see note 1, supra) which might give rise to some notions of collateral estoppel as to the Excel assignment triggering the Trustee's recovery, we think it clear that the Bank's assignment was equally, if not more so, vulnerable to the Superintendence attachment19 and the Government's tax lien.

For this we take our signal from the Texas Courts. And from Parker Square State Bank v. Triangle Supply Co., Tex.Civ.App., 1963, 364 S.W.2d 418 (writ ref'd n.r.e.) it comes in loud and clear. That Court considered in detail the question whether a lien creditor who acquired his lien after delivery of a valid written assignment of accounts acquired a right to the funds superior to that of the assignee where the assignee, as true here, had not filed notice of the assignment under the recording statute. The Court had this to say. 'Article 260-1 does not so clearly provide that an assignee's failure to record enables a creditor to establish superior rights by garnishing the account, or otherwise fixing a lien, but we think such was its purpose. * * * The trial court correctly held that the rights of the appellants as to the accounts (as to) which they failed to file notice of their assignments were inferior to the rights of subsequent lien creditors.' 364 S.W.2d 418 at 423.

The Bank tries here, as the banks did in Parker Square, 364 S.W.2d at 423, to convince the Court that Parker Square conflicts with the Supreme Court's earlier decision in Quinn v. Dupree, 1957, 157 Tex. 441, 303 S.W.2d 769. Our unwillingness to make a non-Erie reading gains some support, we think, from the Court's rejection over the strong dissent of Judge Hughes of the same argument in South Main State Bank v. State of Texas, Tex.Civ.App., 1963, 365 S.W.2d 946, writ ref'd n.r.e. Nor on this record are these considerations altered by United States v. Ray Thomas Gravel Co., Inc., Tex.Civ.App., 1963, 373 S.W.2d 333, reversed, Tex., 1964, 380 S.W.2d 576.20

And, of course, to the attachment lien of Superintendence there may also be added the Government's tax lien, 26 U.S.C.A. 6321, 6322, 6323.

The upshot of it is that the Government, Superintendence and Excel had rights superior to the Bank's earlier non-recorded assignment. That is all the Trustee needed. So this case must now go back for the entry of a judgment requiring the Bank's assignee Boedeker to pay to the Trustee21 the amount received by him. As with another tenacious case, Bros Inc. v. W. E. Grace Mfg. Co., 5 Cir., 1965, 351 F.2d 208, 209, note 1, cert. denied, 1966, 383 U.S. 936, 86 S. Ct. 1065, 15 L. Ed. 2d 852, this milti-Circuit litigation ends with diverse results in the 5th and 10th Circuits, see notes 1, 19, supra.

Reversed with directions.