Left to right: John Wade, John Ricketson, Scott Smith, Nancy Smith, Katherine Peters, Leslie Lowthers
Left to right: John Wade, John Ricketson, Scott Smith, Nancy Smith, Katherine Peters, Leslie Lowthers

Fulton County in 2006 sold a one-acre parcel of land at a courthouse auction to reclaim unpaid taxes.

A Superior Court Judge serving in that same courthouse now must decide what to do with the property more than six years after people realized it contained a historic cemetery.

Cemeteries are tax exempt in Georgia. How the property ended up on the auction block remains a mystery.

Fulton County Superior Judge Kimberly Adams on May 29 heard from the cemetery owner and the descendants of Judge John Heard, the Confederate Veteran buried at the cemetery. Adams is considering a motion for summary judgment to give control of the property back to Judge Heard’s family.

Adams said that she, like many others, is confused about the events that led to the May 29 court hearing.

“Obviously, we’re not going to be able to sort through issues related to the title,” Adams told Wright Mitchell, the attorney representing descendants of Judge Heard.

The judge will likely issue a ruling on whether the entire acre is a cemetery. If it is, then it cannot be developed by its current owner, Christopher Mills. Mills sued the city of Sandy Springs in 2012 after city officials denied his application to build a house on the property. Heard’s descendants intervened and asked the judge to give the property back to them.

Christopher Mills' attorney Christopher Porterfield Speaks to reporters after a May 29 court hearing.
Christopher Mills’ attorney Christopher Porterfield Speaks to reporters after a May 29 court hearing.

Christopher Poterfield, Mills’ attorney, said that the whole acre can’t be tax exempt because the whole acre isn’t being used for burials.

Porterfield said that Mills has a survey showing that there are no bodies or any other burial artifacts in the area where Mills intends to build his house.

“There are not going to be additional burials at the Heard Cemetery,” Porterfield said to Adams.

Mitchell spoke up.

“I object to that statement, your honor,” he said, waving his hand to show the half dozen Heard family members sitting behind him.

Porterfield said there would be plenty of room on the property for future burials and for Mills to have room to build his home.

Adams sounded skeptical of that argument. The descendants claim the whole acre was set aside for a cemetery, Adams said. In 1900, Judge Heard conveyed that acre as a cemetery for his descendants, according to court documents.

Porterfield said the property’s tax exempt status should only apply to those portions being used as a cemetery.

“Simply because in 1900 this one acre was conveyed and set aside for a cemetery, the owners are not entitled to tax exemption on the entire property just because a portion of it contains remains,” Porterfield said. “What if we were talking about two acres or three acres?”

“But we’re not,” Adams said.

Adams stopped the proceedings to remind Heard descendants that they shouldn’t laugh during a court hearing.

As the questioning continued, Adams asked Porterfield how his argument would apply to a larger site, like Arlington National Cemetery. Adams said when someone dedicates property as a cemetery the person dedicating it doesn’t always know how many people will be buried there.

“Judge Heard didn’t know either, but it was his desire to identify and designate a parcel of land to be used for family burial purposes, and I don’t know that I’m in a position to say if one acre designated is sufficient or insufficient,” Adams said.

Porterfield argued that the complexity of the case required a jury trial.

In response, Mitchell said there’s no doubt that Judge Heard wanted the full acre to remain a cemetery.

Mitchell said even if the court decided to avoid sorting out the convoluted story of how the property was sold for back taxes, Judge Adams can settle the question by ruling that the whole acre is a cemetery.

Porterfield asked Adams to let the case go to trial or to rule that a certain portion of the property is a cemetery and the rest belongs to Mills.

Adams asked attorneys for both sides to draw up proposed orders and said she would consider them.

The Heard descendants gathered outside the courthouse after the hearing. They said they never received notice that the cemetery was behind on its taxes. Another Heard descendant, Mary Ann Elsner sold her rights to the property in 2007 to Mills’ in-laws, Henry and Wanda Cline. The Clines bought the property with the intention of preserving it but those plans never materialized. They eventually sold it to Mills for $1.

Mills, Elsner and the Clines have all declined to comment to the Reporter.

The descendants said they were optimistic that Adams would rule in their favor.

“I like the questions the judge asked,” said John Ricketson, Judge Heard’s great-great grandson. “I think she had it narrowed down pretty good, that it wasn’t excessive to set aside an acre for a family cemetery.”

Dan Whisenhunt

Dan Whisenhunt wrote for Reporter Newspapers from 2011 - 2014. He is the founder and editor of Decaturish.com