When the petition was denied as unsustained, the General Court certified this fact to the Governor, who could use his discretion in attaching to the second patent the conditions entering into the first.[1] The first grantee was not stripped of every right by his failure to show that he had seated the lands in dispute, but was permitted to obtain a title to an estate elsewhere upon the basis of his original head rights. There must have been a strong disposition in the colonial authorities to encourage the issuing of second patents to soil which had for many years remained untouched. The rule had sprung up in the Colony that as long as there was no distrainable property on the land, the latter could not be forfeited because the quit-rents were unpaid.[2] The prospect of this advantage from holding a large area in a deserted state was counteracted to an important degree by the fear that it might be difficult to show that the title had not lapsed because the tract had really been seated.
Whenever a person who was seized of lands in fee simple died without heirs and without leaving a will, these lands reverted nominally to the King. At one time, the first individual who took possession of such lands enjoyed the right of having them granted to him without opposition, but in the latter part of the seventeenth century, the patent to an escheated tract passed in general to the person whom the Governor might select from the whole number of the petitioners. An order was issued directed to the escheator of the county in which the plantation was situated. This officer, who was frequently a member of the Council and always a man of prominence in the community, as soon as he received it, summoned a jury of twelve men, by whom an inquest was taken under his supervision.
