(After stating the foregoing facts.)
1. The voluntary dismissal of the cross-action by the plaintiff therein did not deprive the State court of its power to restore the status. It was argued that when the cross-bill was dismissed there was only the insolvency proceeding left, which was superseded by the bankruptcy of the defendant, and that the restoration of the possession of the property to the State court’s receiver would be to take the bankrupt’s property from the bankruptcy court for administration in an insolvency action in the State court. That argument is rested upon the premise that the land was seized by the State court receiver by virtue of his appointment in the insolvency action. But such is not the fact. The Luxury Fruit Company in its cross-petition alleged that Harris was in the physical possession of the land. It is true that his possession was alleged to be as its tenant, but it was also alleged that Harris was claiming adversely under certain deeds which the company asked to be canceled. The company prayed that the receiver appointed in the insolvency proceeding take charge of the specific land, and the court’s order was granted in response to that prayer. The bare allegation that Harris’s possession was that of a tenant can not serve to establish such to be the fact, in advance of a trial of the issue. Harris was conceded to be in possession of the land when the cross-petition was *870filed and the receiver was appointed. The fruit company desired him ousted of possession and his claim of title 'annuled, and resorted to a cross-action in the insolvency proceeding to effectuate its purpose. This court held that such cross-action was to be treated as an independent equitable suit against the defendants therein named, and that the order directing the receiver to take charge of the land was a substantial seizure of the possession of the land as against the claim of title and possession of the defendants in the cross-action, and that the court could not thus summarily transfer the possession of the land to the plaintiff in the cross-action or the receiver in bankruptcy representing him. Harris V. Luxury Fruit Company, 142 Ga. 67 (82 S. E. 447). It is therefore apparent that the possession of the receiver was substituted for that of Harris, by virtue of the order entered in response to the prayer of the cross-action. The plaintiff in that cross-action could dismiss its suit; but it does not follow that the effect of the dismissal would be to declare Harris’s possession to be that of the plaintiff, as was alleged in the cross-action. It would certainly be a novel proposition to allow a plaintiff to prove his case, and obtain a substantial part of the relief claimed,, by dismissing his petition. The Luxury Fruit Company, by dismissing the cross-action under which the receiver took possession of the land, did not deprive the court of the power to restore the status. Smith v. Smith, 101 Ga. 296 (28 S. E. 665); Fountain v. Mills, 111 Ga. 122 (36 S. E. 428).
2. While the writ of error to the judgment directing the State court receiver to deliver possession of the land to the receiver of the bankruptcy court was pending in this court, the parties to this controversy instituted various proceedings in the court of bankruptcy. It appears that in those proceedings the parties attempted to shift their positions relatively to their respective contentions as to the, possession of the land when the bankruptcy receiver took charge of it. Much evidence was submitted upon that question. It also appears that a suit had been filed in the district court of the Hnited States by the bankrupt’s trustee, to cancel the title claimed by Harris and Brown, upon substantially the same grounds as were set up' in the Luxury Fruit Company’s cross-petition. Where the bankruptcy court has the actual possession of property, the title to which is in dispute, that property is withdrawn from the jurisdiction of other courts, and the bankruptcy court has ancillary juris*871diction to hear and determine all questions respecting such title. Murphy v. John Hofman Co., 211 U. S. 562 (29 Sup. Ct. 154, 53 L. ed. 327). This jurisdiction does not arise out of the bankruptcy act, but comes from the application of the universally accepted doctrine that when a State court and a court of the United States may each take jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted. Harkrader v. Wadley, 172 U. S. 148 (19 Sup. Ct. 119, 43 L. ed. 399). The State and Federal courts uniformly entertain towards each other a spirit of comity, the exercise of which prevents any unseemly wrangle over the jurisdiction of a particular res. In the instant case the receiver of the bankruptcy court made application to the State court for an order requiring its receiver to deliver possession of the land to him. The State court passed the order, and its receiver relinquished possession to the Federal court receiver, and the latter’s possession may well have been assumed by the State court to have been acquired in this manner. The subsequent bankruptcy procedure was based on the fruits of the order of the State court. This judgment of the State court has been pronounced to be erroneous; and the present proceeding is simply a move looking towards the restoration of the status, by authorizing the State court receiver to apply to the bankruptcy court to deliver possession of the land to the State court receiver, who had exclusive jurisdiction of the res when the possession of the land was delivered to the receiver of the bankruptcy court.
Judgment affirmed.
All the Justices concur, except Fish, G. J., absent.NOTE.
Chief Justice Eish was prevented by illness from taking part in the judgments rendered in the cases from page 655 to the close of this volume.